Gloria Flores Robles v. State

CourtCourt of Appeals of Texas
DecidedAugust 4, 2010
Docket10-09-00204-CR
StatusPublished

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Bluebook
Gloria Flores Robles v. State, (Tex. Ct. App. 2010).

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00204-CR

GLORIA FLORES ROBLES, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 08-00730-CRF-272

MEMORANDUM OPINION

A jury convicted Gloria Flores Robles of possession of marihuana and the trial

court sentenced her to five years in prison. She challenges: (1) the legal and factual

sufficiency of the evidence; and (2) the denial of her motion to suppress. We affirm.

FACTUAL BACKGROUND

Sergeant Shane Bush stopped a pick-up truck after the driver turned without

properly signaling. The driver and passenger exited the truck. Bush testified that

individuals normally remain in the vehicle, so these actions suggested an attempt by the occupants to distance themselves from the vehicle or flee. Bush ordered the occupants

to sit inside the truck. The passenger complied, but the driver turned, spoke to the

passenger, and began “messing with something in his waistband and at the front seat.”

The driver suddenly fled. Officers later apprehended the driver, Evaristo Rodriguez.

As he approached the open passenger door of the truck, Bush smelled the

“overwhelming” odor of raw marihuana. He found four grocery bags behind the

driver’s seat. The bags held two one-pound and eleven quarter-pound individually

packaged Ziploc bags of marihuana. The odor suggested that the marihuana was fresh.

The passenger, Robles, told Bush that “Jose” was driving her to the store. She

did not know Jose’s last name, but he was a friend whom she did not know well.

Robles denied owning a purse that Bush found in the truck. When a Spanish-speaking

officer arrived, Robles admitted ownership of the purse. The purse contained bags, but

no marihuana. Robles denied any knowledge of the marihuana. Bush testified that the

marihuana could be seen through the sides and tops of the grocery bags, but could not

be reached from the passenger side of the truck. No drugs, contraband, or illegal items

were found on Robles’s person.

Bush concluded that Robles was attempting to distance herself from Rodriguez

and the truck, something individuals typically do when traffic stops involve a large

amount of marihuana. Bush explained that the lack of marihuana or smoking

instruments on Robles’s person indicates that she is not a user. He testified that users

do not typically have five pounds of marihuana in their possession.

Robles v. State Page 2 Bush testified that dealers obtain marihuana by the pound. He explained that

the thirteen packages found in the truck indicated that Robles and Rodriguez probably

began with a five-pound load comprised of twelve quarter-pound packages and two

one-pound packages, a quarter-pound of which had already been sold. He explained

that dealers often buy five, ten, or fifteen pounds and then sell quarter-pounds,

sometimes a pound, to other dealers. Based on his training and experience, Bush

concluded that Robles and Rodriguez were mid-level dealers who had received a five-

pound shipment, were trafficking marihuana, and were delivering to low level dealers.

Analyst Joel Budge testified that the marihuana weighed 4.62 pounds.

Lieutenant Carey White testified that “Jose Rodriguez” is an alias that Rodriguez

uses. According to White, Robles had visited Rodriguez in jail on several occasions

before her arrest in this case. Additionally, Robles’s own jail records list “Jose

Rodriguez” as a visitor and her boyfriend.

LEGAL AND FACTUAL SUFFICIENCY

In point one, Robles contends that, under Merrell Dow Pharmaceuticals, Inc. v.

Havner, 953 S.W.2d 706 (Tex. 1997), the evidence is legally insufficient to support her

conviction because the underlying data of Sergeant Bush’s opinions is unreliable. In

point two, Robles contends that the evidence is factually insufficient to support her

conviction because, absent Bush’s testimony, the remaining evidence is against the great

weight and preponderance of the evidence.

Robles v. State Page 3 Applicable Law

A defendant commits unlawful possession of a controlled substance where he:

(1) exercised control, management, or care over the substance; and (2) knew the matter

possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005). When the defendant is not in exclusive possession or control of the place where

contraband is found, the State must affirmatively link the defendant with the

contraband. See id. at 406.

Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant’s connection with the drug was more than fortuitous. This is the so-called “affirmative links” rule which protects the innocent bystander--a relative, friend, or even stranger to the actual possessor--from conviction merely because of his fortuitous proximity to someone else’s drugs. Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., “links”), may well be sufficient to establish that element beyond a reasonable doubt. It is, as the court of appeals correctly noted, not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.

Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185

S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). The Court of

Criminal Appeals has cautioned against use of the term “affirmative links” as

suggesting “an independent test of legal sufficiency” and chosen instead to use only the

term “‘link’ so that it is clear that evidence of drug possession is judged by the same

standard as all other evidence.” Id. at 162 n.9.

“[S]ome factors which may circumstantially establish the legal sufficiency of the

evidence to prove a knowing ‘possession’” include:

Robles v. State Page 4 (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Id. at 162 n.12 (quoting Evans, 185 S.W.3d at 36). “They are not a litmus test.” Id.

Analysis

Robles contends that Bush failed to provide evidence supporting his opinions

that she was trafficking marihuana, dealers obtain marihuana by the pound, she and

Rodriguez had received a five-pound load and sold a quarter-pound, and she and

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