Jose Saldivar v. State

• Court: Court of Appeals of Texas
• Decided: April 6, 2005
• Docket: 04-04-00210-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-04-00210-CR

Jose SALDIVAR,

Appellant

v.

The STATE of Texas,

Appellee

From the 218th Judicial District Court, LaSalle County, Texas

Trial Court No. 03-05-00026-CRL

Honorable Donna S. Rayes, Judge Presiding

Opinion by:    Phylis J. Speedlin, Justice

Sitting:            Alma L. López, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed:   April 6, 2005

AFFIRMED

            Jose Saldivar appeals his conviction of possession of cocaine with intent to deliver. Saldivar asserts that the evidence is legally and factually insufficient to support his conviction and that the trial court erred in failing to include an instruction in the jury charge. We affirm the trial court’s judgment.

Background

            State Trooper Homero Marines, a twenty-two year veteran of the Texas Department of Public Safety, moved to 809 Center Street in Cotulla, Texas in December of 2001. Jose Saldivar and his brother, Carlos, lived next door to Marines. Although the neighborhood generally had light traffic, Marines testified that beginning Friday evening and throughout the weekend, a large volume of traffic would stop at the Saldivars’ house. One individual would get out of the car, go to the house, knock at the door, go inside, and then leave shortly thereafter. The individuals did not stay at the Saldivars’ house more than ten or fifteen minutes. Marines met with a LaSalle County narcotics officer, Joseph Canales, and informed him of the activity because Marines believed that the Saldivars were possibly dealing narcotics. Marines did not obtain names, descriptions of individuals or vehicles, or license plate numbers during his observations. Marines also did not take any photographs. Marines did not assist in the Saldivars’ arrest.

            Sergeant Joseph Canales, a nineteen year sheriff’s department veteran, had been assigned to narcotics for thirteen years. On November 23, 2002, Canales was working a narcotics case primarily involving Jose Saldivar. Canales had received information about a year prior to that date about suspicious activity at the Saldivars’ residence from Marines. Around November of 2002, an informant approached Canales and identified the Saldivars’ residence as being involved in dealing cocaine. The informant agreed to go into the residence and observe the activities. The informant went into the residence at least three times. The informant told Canales that pre-packaged aluminum foil containers of cocaine were being sold for twenty dollars each. The information received from the informant was with regard to Jose Saldivar. Canales admitted that the informant was compensated for the information. Canales had used this particular informant in the past, and the informant had proven to be reliable.

            Canales also conducted drive-by surveillance and observed a lot of youths from the community going to the residence. Towards night and weekends, vehicles would arrive, someone would exit the vehicle and go inside the house but depart a short time later. Canales testified that this activity was consistent with narcotics dealing.

            Canales prepared an affidavit for a search warrant based on the information available to him. On November 23, 2002, Canales went to execute the search warrant. The officers yelled “police” and entered through an unlocked door. The officers handcuffed the five males present, including the Saldivars. Jose Saldivar consented to the officers searching the residence. Although Jose appeared surprised at the officers’ entry, he did not appear surprised that the officers were looking for cocaine. A clear package containing cocaine was recovered from the upper shelf of the closet in the rear bedroom. Throughout the closet and in the bedroom, the officers recovered twenty-six precut aluminum foils used in packaging cocaine. In addition, the officers recovered three precut aluminum foils in the front bedroom. The officers also recovered three police batons, a police scanner, and two rifles. None of the men gave a statement, and Canales did not determine which of the Saldivars slept in which bedroom.

            Armando Romo, a narcotics investigator with the sheriff’s department, assisted in executing the search warrant for the Saldivars’ home. Romo recovered a bag of cocaine, some batons, and some precut aluminum foils that Romo stated were used to package cocaine to sell for twenty dollars. Romo also located three precut aluminum foils in the front bedroom on top of the bed. Romo did not determine which of the Saldivars slept in which bedroom.

            Juan Ortiz, the lab supervisor for the crime lab, testified that the bag recovered from the Saldivars’ house contained 10.87 grams of cocaine.

            Carlos Saldivar testified that he shared a home with his brother. Carlos testified that the men were at his home to watch a fight on television. Carlos slept in the back bedroom. Carlos testified that he used the aluminum foil recovered from his room to make Chinese stars. Carlos stated that he kept baking soda or baking powder in a bag in his closet to clean his guns. Carlos testified that his brother, Jose, slept in the front bedroom. Carlos stated that Jose did not know that he kept the baking soda in his room.

            Jose Saldivar testified that he did not know the aluminum foil was in his bedroom. Jose stated that the large amount of traffic was attributable to friends stopping by the house. With regard to Carlos keeping a bag of baking soda in his room to clean his guns, Jose testified that he knew Carlos “was trying to experiment with different stuff” but he did not know Carlos kept a bag of baking soda in his room.

Sufficiency of the Evidence

            In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We are not permitted to reweigh the evidence, rather we defer to the trier-of-fact’s findings, particularly those based on credibility determinations. Cain v. State, 958 S.W.2d 404, 407-09 (Tex. Crim. App. 1997).

            To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether this evidence is direct or circumstantial, it must establish that the accused’s connection with the drug was more than just fortuitous. Id. at 405-06. “This is the whole of the so-called ‘affirmative links’ rule.” Id. at 406. This rule simply restates the common-sense notion that a person may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Id. Accordingly, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Id. Circumstantial evidence relevant to establish an “affirmative link” between the appellant and the contraband include: (1) appellant’s presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant’s proximity to and accessibility of the narcotic; (4) whether the appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. See Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.— Houston [14th Dist.] 2001, pet. ref’d). Although courts recognize many non-exhaustive factors that may constitute affirmative links, the number of factors is not as important as the degree to which they, alone or together, tend affirmatively to link the accused to the drug. See Swarb, 125 S.W.3d at 684; Hyett, 58 S.W.3d at 830.

            Intent to deliver a controlled substance may be proved by circumstantial evidence, including evidence surrounding its possession. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Intent to deliver may be inferred from the quantity of drugs possessed, the manner in which the drugs are packaged, and the presence of drug paraphernalia. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

            In this case, Jose was present when the search warrant was executed and had access to the contraband. The aluminum foil packets recovered from the bedroom used by Jose were in plain view. The officers testified that foil packets of this size are used to package narcotics. Furthermore, the informant specifically identified Jose as being present during the periods of time that the informant was in the residence and observed pre-packaged aluminum foil containers of cocaine being sold for twenty dollars each.

            The evidence is legally and factually sufficient to support Jose’s conviction of possession of cocaine with intent to deliver. Jose’s first issue is overruled.

Jury Charge

            In reviewing a claim of jury charge error, this court follows a two-step process. First, we decide whether error exists in the jury charge and if so, we determine whether the error caused the defendant to suffer sufficient harm that it requires reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996). The degree of harm necessary for reversal depends upon whether the error was preserved. Id. at 171. If no objection is made at trial, the appellant can obtain reversal only if the error caused him egregious harm. Id. Errors which result in egregious harm are those which affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” Id. Because Jose did not make an objection to the jury charge with regard to the issue raised on appeal, Jose must show error and egregious harm.

            “The usual way in which trial courts deal with evidence admissible only against one co-defendant is to instruct the jury that it may consider such evidence only against the defendant as to whom it was admitted and may not consider it against other defendants.” 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 33.44 (2001). Although Jose contends that the trial court erred in failing to give this type of instruction in this case, Jose does not identify any evidence that was admissible only against Carlos. Even assuming the trial court erred, Jose did not suffer egregious harm as a result. The information regarding the informant’s observations clearly was admissible with regard to Jose. This evidence, coupled with the aluminum foil packets recovered from Jose’s bedroom, provided the “affirmative link” necessary to find Jose in possession and the circumstantial evidence of his intent to deliver.

            Jose’s second issue is overruled.

Conclusion

            The judgment of the trial court is affirmed.

DO NOT PUBLISH