Valcarcel v. State

718 S.W.2d 368, 1986 Tex. App. LEXIS 8440
CourtCourt of Appeals of Texas
DecidedAugust 28, 1986
DocketNo. 07-85-0214-CR
StatusPublished
Cited by4 cases

This text of 718 S.W.2d 368 (Valcarcel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valcarcel v. State, 718 S.W.2d 368, 1986 Tex. App. LEXIS 8440 (Tex. Ct. App. 1986).

Opinion

BOYD, Justice.

Appellant William Marcos Valcarcel (William) appeals from his conviction of aggravated possession of cocaine and the consequent jury-assessed punishment of ninety-nine years confinement in the Texas Department of Corrections and a fine of $100,-000. We affirm the conviction.

In five grounds, appellant contends that: (1) the verdict is contrary to the law and evidence because there is insufficient evidence to prove that appellant is guilty of possession; (2) the trial court erred in failing to suppress the fruits of the search of appellant’s vehicle in that the consent to search was not free and voluntary; (3) the trial court erred in admitting the testimony of the State’s witness, Wayne Clark Williams, since it was prejudicial and “tantamount” to an improper form of bolstering; (4) he was deprived of a fair and impartial trial in violation of the U.S. Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure in that an actual conflict of interest adversely affected counsel’s representation of appellant and his wife; and (5) he was deprived of a fair and impartial trial due to ineffective assistance of counsel in violation of the U.S. Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure.

In his first ground, appellant challenges the sufficiency of the evidence to prove that he actually possessed the contraband. The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases, and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on motion for rehearing). The reviewing court will look at all the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d at 456. In applying this analysis, a conviction based upon circumstantial evidence may not be sustained on review unless the circumstances exclude every reasonable hypothesis except the guilt of the defendant, and proof amounting to no more than a strong suspicion of guilt is not sufficient to uphold the conviction. Nevertheless, it is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion of guilty is warranted by the combined and cumulative force of all the incriminating circumstances. Gilmore v. State, 666 S.W.2d 136, 154 (Tex.App.— Amarillo 1983, pet. ref’d).

On April 21, 1984, Highway Patrol Trooper Frank Frausto clocked William and Maria Valcarcel, husband and wife, traveling in a 1984 silver Tempo automobile at the speed of 85 m.p.h. on Interstate 40. The vehicle had Florida license plates registered in Dade County. He pulled the automobile over and asked William, the driver of the vehicle, to have a seat in the officer’s car. William then produced a [371]*371Florida driver’s license and told the officer that he and his wife were on a pleasure trip to Las Vegas. He said they were going to leave the car in Las Vegas and fly home. The car was a rental car and had been rented by a person other than William because neither he nor Maria had a credit card. William told the trooper his occupation was that of delivery man.

At that point, Frausto asked William to sign a consent-to-search form which William did. Potter County Deputy Sheriff Mancie Light then arrived and removed Maria, who was seated in the passenger seat. Both officers then searched the rental car. In the console between the front seats, they found a small vial containing a white powder, later proven to be cocaine, and a little spoon with a marijuana leaf design on it. William and Maria were then placed under arrest, read their rights, and narcotics agents were called.

When he was told of the items located by the officers, William told Frausto that the cocaine in the small vial was for his own personal use to keep awake while driving and that he “always carried a container like this with cocaine in it in Florida and the police officers never did nothing about it.” When a more complete search of the rental car was conducted by narcotics officers, they found a round cylinder taped with duct tape and wired underneath the bumper of the car. Since the officers could not remove this cylinder at the scene, they took the car to the Department of Public Safety office in Amarillo where it was removed. The cylinder was later shown to contain approximately 680 grams of cocaine.

Officer Wayne Clark Williams testified that he had received training from New Mexico law enforcement officers as to a “drug courier profile.” He stated that under this profile, many drugs are imported to Miami, Florida, particularly Dade County, and shipped to points on the west coast, primarily Las Vegas and Los Angeles. The couriers drive rental cars, usually late models, and they are often rented by other people. With cocaine, the use of gray duct tape is prevalent to hide the odor of the drugs and sometimes air fresheners and talcum powder are used. The drugs are often hidden in secret compartments in the trunk and in panels, heater vents, and fender walls. The couriers are usually of Spanish descent and often consist of a husband and wife team. They are usually cooperative with law enforcement officers although they often carry weapons. The cars used to transport the drugs are normally dropped at the airport of the destination city. Often the courier will use part of the drugs on the trip in order to stay awake. Officer Williams testified that Officer Frausto had received the same information concerning the drug courier profile that he had.

Roy Murphy, supervisor of the Texas Department of Public Safety, Amarillo Field Crime Laboratory, testified that the small vial contained 1.11 grams of 41% strength cocaine and the cylinder contained 686.1 grams of 44% strength cocaine. Because of the consistent degree of purity, he said it was possible and consistent that the cocaine from the small vial could have been obtained from the cylinder. He also testified that one gram sizes are usually in the 15-20% strength range and it would be unusual to have 41% strength cocaine in the amount of one gram although there were exceptions to that rule.

Wanda Maxine Terry, desk manager of the Coronado Inn Motel, testified that in April she overheard a conversation between a man named Mr. Sotolongo and William and Maria. She testified Maria was “agitated and angry” and said, “The family is going to get that son-of-a-bitchin’ Williams,” at which time Sotolongo told her to hush. Maria also said, “He is catching too many of us.” Although the conversation was in both Spanish and English, Ms. Terry testified that these remarks were made in English. Officer Williams was then recalled and he testified he had previously made two courier drug busts involving parties of Cuban descent.

Mario Sotolongo testified he is married to an aunt of Maria and works for a food distributorship Maria and William own. [372]*372He came to Amarillo in April 1984 to get Maria and William out of jail and take them home.

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Related

Opinion No.
Texas Attorney General Reports, 1990
Valcarcel v. State
765 S.W.2d 412 (Court of Criminal Appeals of Texas, 1989)
Lancaster v. State
734 S.W.2d 161 (Court of Appeals of Texas, 1987)

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Bluebook (online)
718 S.W.2d 368, 1986 Tex. App. LEXIS 8440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valcarcel-v-state-texapp-1986.