Jose Cruz Tunal v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 5, 2024
• Docket: 13-24-00015-CR
• Status: Published

Opinion

NUMBER 13-24-00015-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOSE CRUZ TUNAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 451ST DISTRICT COURT OF KENDALL COUNTY, TEXAS

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Benavides

A jury convicted appellant Jose Cruz Tunal of possession with intent to deliver a

controlled substance in penalty group one weighing more than four and less than 200

grams, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). The trial

court sentenced Tunal to forty years’ imprisonment. By a single issue, Tunal argues that

the evidence was insufficient to support his conviction. We affirm. I. BACKGROUND1

Justin Granado, an investigator with the Kendall County Sheriff’s Office, and

Dalton Mitschke, a police officer with the Lower Colorado River Authority, both testified

that they happened upon a stalled vehicle while traveling along I-10 on November 2, 2021.

According to Investigator Granado, the vehicle “appeared to be broken down” and “was

partially in the slow lane.” Investigator Granado conducted a brief search of the vehicle

and its immediate surroundings but “couldn’t find anybody” associated with the vehicle.

Since “it was high-traffic times,” and Investigator Granado felt he “couldn’t leave [the

vehicle] there, . . . [he] called for a tow truck.”

As Officer Mitschke “was walking around the vehicle,” he “notice[d] a baggie on

the center console containing a crystal-like substance.” Investigator Granado also

“noticed a plastic bag with a large quantity of a crystallized substance on the center

console armrest.” Officer Mitschke then observed a “red and black backpack in the

driver’s seat,” inside of which was an “ID card, some clothing, [and] a small digital scale.”

The “ID card” had Tunal’s name on it and “[t]here was a fine residue of . . . a crystal-like

substance on top of the scale.” From Officer Mitschke’s experience, scales like the one

found in this case are “usually used to weigh out and to pack individual baggies of

paraphernalia, like drug paraphernalia.” Investigator Granado observed that there was

also a “bag of clear plastic baggies that are commonly used to distribute narcotics.” Also

located inside the vehicle were a pill bottle and articles of mail belonging to other

1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio by

order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). 2 individuals. Photos of the exterior and interior of the abandoned vehicle, as well as some

of its isolated contents, were admitted into evidence.

While on the scene, Investigator Granado conducted a “field test” of the substance

on the surface of the digital scale using a “methamphetamine test kit,” which yielded a

positive result for methamphetamine. Dispatch for the City of Boerne then advised Officer

Mitschke and Investigator Granado that a man was “walking eastbound around the 533

mile marker . . . close to the highway.” Officer Mitschke and Investigator Granado then

traveled eastbound and located Tunal “approximately two and a half, [to] three miles” from

the abandoned vehicle. Officer Mitschke testified that it was uncommon to see someone

walking “in that area and . . . at that time of the day.”

Tunal was speaking on the phone when the officers initially approached him, and

Investigator Granado overheard Tunal saying, “[Y]eah, they’re here. I know, boss,” or

“something to that effect.” Officer Mitschke explained that Tunal “was sweat

drenched . . . [and] kind of talking frantically.” Tunal identified himself to the officers and

explained that “he was dropped off by a friend.” Officer Mitschke found this suspicious

since the officers had found Tunal’s identification in the abandoned vehicle. After Tunal

was asked about this inconsistency, “he said he was driving the vehicle and that it ran out

of gas.” Tunal also “said he was borrowing the backpack” found in the abandoned vehicle

but that the items found inside it were his. In other words, “[h]e didn’t claim ownership of

the actual backpack, just what was in it.” Tunal was subsequently arrested and

transported to jail in Officer Mitschke’s patrol car. Video footage from the cabin of Officer

Mitschke’s patrol car was admitted into evidence. In the footage, Tunal frequently curses

3 in both English and Spanish, and states at one point, “Should’ve just stayed in the

[expletives] . . . . I should’ve never asked for that [expletives] car. . . . All ‘cause I wanted

to take a shot.”

Oscar Cazares, a forensic scientist with the Texas Department of Public Safety,

testified that he tested the contents of the large plastic bag that Officer Mitschke and

Investigator Granado discovered in the abandoned vehicle. According to Cazares, the

results indicated that the bag contained 27.56 grams of methamphetamine.

The jury found Tunal guilty, and the trial court sentenced Tunal as described

above. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his sole issue, Tunal argues the evidence was insufficient to show that he

possessed the methamphetamine and intended to deliver it.

A. Standard of Review & Applicable Law

“The sufficiency of the evidence is measured by comparing the evidence produced

at trial to ‘the essential elements of the offense as defined by the hypothetically correct

jury charge.’” Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (quoting Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury

charge ‘accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the

defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240). In reviewing the sufficiency

of the evidence, we consider all the evidence presented in the light most favorable to the

4 verdict to determine whether the trial court was justified in finding guilt beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality

op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Here, the State was required to prove that Tunal knowingly possessed with intent

to deliver a controlled substance listed in penalty group one, which includes

methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a), (e);

Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet.

ref’d).

B. Possession

To establish possession, “the State must prove that the defendant’s connection

with the controlled substance is more than just fortuitous.” Medina v. State, 565 S.W.3d

868, 873 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). “Mere presence at the

location where drugs are found is . . . insufficient, by itself, to establish actual care,

custody, or control of those drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006). Rather, the State must show “that the defendant (1) exercised ‘actual care,

custody, control, or management’ over the substance and (2) knew the substance was

contraband.’” Espino-Cruz, 586 S.W.3d at 543 (first citing TEX. HEALTH & SAFETY CODE

ANN. § 481.002(38) (defining “possession”); then citing Blackman v. State, 350 S.W.3d

588, 594 (Tex. Crim. App. 2011); and then citing Evans, 202 S.W.3d at 161). Additionally,

“possession need not be exclusive,” so long as there are affirmative links between the

defendant and the drug. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App.

1985).

5 A defendant must “be affirmatively linked with the drugs he allegedly possessed,

but this link need no[t] . . . be so strong that it excludes every other outstanding

reasonable hypothesis except the defendant’s guilt.” Brown v. State, 911 S.W.2d 744,

748 (Tex. Crim. App. 1995). Some of the factors which may circumstantially establish the

legal sufficiency of the evidence to prove a knowing possession include:

(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.

Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at

6 162 n.12). It is not the number of links that is dispositive, but the combined logical force

of all the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162. “Although these

factors can help guide a court’s analysis, ultimately the inquiry remains that set forth in

Jackson: Based on the combined and cumulative force of the evidence and any

reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Tate, 500 S.W.3d at 414 (citing Jackson, 443 U.S. at 318–19).

When the officers initially searched the abandoned vehicle, they discovered the

large plastic bag of methamphetamine in plain view. See id. Tunal was not present when

the search was conducted, and, in fact, was about “two and a half, [to] three miles” away

from the search. But there is no requirement that a defendant be caught in the act, so to

speak, of possession for the State to prove that he exercised actual care, custody, control,

or management over the controlled substance. See Rodriguez v. State, 888 S.W.2d 211,

213, 215 (Tex. App.—Corpus Christi–Edinburg 1994, no pet.) (concluding that the

evidence was sufficient to establish appellant knowingly possessed a controlled

substance where appellant’s boot prints were found leading to and from bundles of

marijuana). The defendant’s proximity to the controlled substance is but one factor among

many that we consider. See Tate, 500 S.W.3d at 414.

When Tunal was stopped, Investigator Granado overheard Tunal saying, “[Y]eah,

they’re here. I know, boss,” or “something to that effect.” Tunal initially indicated to the

officers that he was dropped off by a friend. However, after being confronted with the fact

that his identification was found in the abandoned vehicle, he acknowledged that he had

been driving it and that it ran out of gas. That Tunal originally sought to distance himself

7 from the abandoned vehicle by claiming someone else dropped him off on the side of a

busy highway indicates an awareness that being linked to the vehicle could also link him

to its illegal contents and is thus a circumstance affirmatively indicating his guilt. See

Santiesteban-Pileta v. State, 421 S.W.3d 9, 14 (Tex. App.—Waco 2013, pet. ref’d) (“[A]n

implausible story by the defendant can provide circumstantial evidence indicating guilty

knowledge of the controlled substance.”). He also later admitted that the contents of the

backpack—which included a digital scale topped with a residue of methamphetamine—

were his. See Tate, 500 S.W.3d at 414. After he was placed under arrest, Tunal also

implicated himself, stating, “Should’ve just stayed in the [expletives] . . . . I should’ve

never asked for that [expletives] car. . . . All ‘cause I wanted to take a shot.” See id.

Tunal points to the articles of mail addressed to another person, the pill bottle that

was prescribed to another individual, and the fact that the vehicle was registered to

another individual. However, Investigator Granado and Officer Mitschke testified that they

found no other individuals in the proximity of the vehicle. Further, there was no evidence

presented that those individuals were ever in the vehicle on the evening in question.

Given the combined and cumulative force of the evidence and any reasonable

inferences therefrom, we conclude that the evidence was sufficient to support the jury’s

finding that Tunal knowingly possessed the methamphetamine. See id.

C. Intent to Deliver

“Intent to deliver may be proved by circumstantial evidence, including evidence

regarding a defendant’s possession of the drugs.” Mack v. State, 859 S.W.2d 526, 528

(Tex. App.—Houston [1st Dist.] 1993, no pet.). Factors that may be considered when

8 determining whether the evidence showed an intent to deliver include:

(1) the nature of the location at which the defendant was arrested;

(2) the quantity of controlled substance in the defendant’s possession;

(3) the manner of packaging;

(4) the presence of drug paraphernalia (for either drug use or sale);

(5) the defendant’s possession of large amounts of cash; and

(6) the defendant’s status as a drug user.

Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d);

see also Hardaway v. State, No. 13-15-00507-CR, 2017 WL 3431827, at *2 n.3 (Tex.

App.—Corpus Christi–Edinburg Aug. 10, 2017, pet. ref’d) (mem. op., not designated for

publication).

Much of the same evidence that shows Tunal knowingly possessed the

methamphetamine also shows that he intended to deliver the narcotic. Investigator

Granado testified that with that quantity of methamphetamine, “what they can do is they

take that large quantity, and they’ll break it down into smaller quantities, and they sell

that.” Tunal acknowledged that the digital scale that tested positive for methamphetamine

was his. Small plastic bags that Investigator Granado testified “are commonly used to

distribute narcotics” were also discovered in the abandoned vehicle. This evidence

suffices to prove not only that Tunal possessed the methamphetamine, but that he also

intended to distribute it. See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App.

2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex.

Crim. App. 2015); see also Allen v. State, No. 13-13-00188-CR, 2014 WL 4402135, at *6

9 (Tex. App.—Corpus Christi–Edinburg Sept. 4, 2014, no pet.) (mem. op., not designated

for publication) (concluding that the evidence was sufficient to show an intent to deliver

where, “in addition to the methamphetamines,” the evidence seized from appellant’s

possession included “baggies, a digital scale, and other drugs”).

Tunal argues that “[a]lthough some facts might suggest [an] intent to

deliver[,] . . . this Court in reviewing the sufficiency of the evidence must examine all the

evidence in the record and not just the evidence that supports the verdict.” But an

important aspect of our legal sufficiency review is that we review all the evidence “in the

light most favorable to the verdict.” Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim.

App. 2011); see Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Having done

so, we conclude that the evidence was sufficient to establish that Tunal knowingly

possessed methamphetamine with the intent to deliver.

We overrule Tunal’s sole issue on appeal.

III. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 5th day of July, 2024.