Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00189-CR
Victor Manuel PEREZ, Appellant
v.
The STATE of Texas, Appellee
From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6059 Honorable Velia J. Meza, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: August 19, 2020
AFFIRMED
Victor Manuel Perez appeals his convictions for possession of less than one gram of
cocaine, and one to four grams of heroin with intent to deliver. He argues there is legally
insufficient evidence to support his convictions, and the trial court erred by denying his motions
to suppress and for a directed verdict. We affirm the judgments of conviction.
BACKGROUND
Perez was indicted for possession of cocaine and heroin. Perez pled not guilty, and the case
proceeded to a jury trial. The trial court admitted into evidence footage from a body camera, 04-19-00189-CR
pictures, and the physical evidence of the drugs. Four witnesses testified for the State, including
three officers with the San Antonio Police Department (SAPD) and a forensic scientist in the drug
section of the Bexar County Crime Lab.
According to witness testimony, SAPD officers Steven Jordan and Brian Brietzke received
a tip from an informant that narcotics were being sold at a laundromat on West Commerce Street.
Both officers testified the location was known for narcotics trafficking. Officers Jordan and
Brietzke, who were wearing plain clothes, established surveillance and saw Perez conduct several
“hand to hand” transactions with pedestrians who had walked up to him over the course of fifteen
to twenty minutes. Officer Jordan requested that a uniformed officer make contact with Perez.
SAPD officer Bryant Soldevila, who was wearing his uniform, arrived at the laundromat,
and Perez then started walking away from Officer Soldevila. Officer Soldevila detained Perez,
searched his pockets, and found a small baggie containing a substance in Perez’s front right pocket.
Four other small baggies were found on the ground near where Perez was standing. Officer
Brietzke field tested the substance in each baggie. The substances in the baggies found on the
ground consisted of cocaine and black-tar heroin, and the baggie found in Perez’s pocket contained
black-tar heroin.
During trial, defense counsel moved to suppress evidence from Officer Soldevila’s search
of Perez and moved for a directed verdict. The trial court denied the motions. The jury found Perez
guilty of possession of cocaine and heroin, the trial court imposed Perez’s sentences, and Perez
filed a timely notice of appeal.
DISCUSSION
Perez presents the following two issues on appeal: (1) “The evidence is legally insufficient
to sustain a conviction and the trial court erred in denying Appellant’s motion to suppress evidence
and motion for directed verdict [under the U.S. Constitution];” and (2) “The evidence is legally
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insufficient to sustain [a] conviction and the trial court erred in denying Appellant’s motion to
suppress evidence and motion for directed verdict [under the Texas Constitution].”
A. Motion to Suppress & Motion for Directed Verdict
A point of error that is multifarious presents nothing for our review. County v. State, 812
S.W.2d 303, 308 (Tex. Crim. App. 1989). Furthermore, appellate briefs must contain a clear and
concise argument in support of the issues presented, with appropriate citations to authority. TEX.
R. APP. P. 38.1(i). Perez’s issues challenge the denial of two separate motions and the legal
sufficiency of the evidence; these are distinct legal issues. See, e.g., County, 812 S.W.2d at 30
(holding an issue challenging an evidentiary ruling and sufficiency is multifarious). Furthermore,
Perez’s brief does not contain any arguments or cite appropriate authorities regarding the denial of
his motion to suppress or motion for directed verdict. Because Perez’s issues and arguments relate
almost exclusively to the sufficiency of the evidence, we construe Perez’s issues as challenging
only the sufficiency of the evidence. We hold any issues about the denial of Perez’s motions are
waived. See id.
B. Legal Sufficiency
In reviewing the evidence to determine whether it is legally sufficient to support a
conviction, we consider all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). It is the jury’s responsibility to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson,
-3- 04-19-00189-CR
443 U.S. at 319. We determine “whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to the
verdict.” Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). “When the record supports
conflicting inferences, [we] must presume [the jury] resolved the conflicts in favor of the
prosecution and defer to that determination.” Id.
Perez argues there is legally insufficient evidence showing he possessed cocaine and heroin
because no evidence showed he possessed the baggies found on the ground and the substance in
the bag found in his pocket was not tested again in a lab. See TEX. HEALTH & SAFETY CODE
§§ 481.102, 481.115 (providing possession of heroin and cocaine are criminal offenses).
“‘Possession’ means actual care, custody, control, or management.” Id. § 481.002(38); see Tate v.
State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). “When the contraband is not in the exclusive
possession of the defendant, a fact finder may nonetheless infer that the defendant intentionally or
knowingly possessed the contraband if there are sufficient independent facts and circumstances
justifying such an inference.” Tate, 500 S.W.3d at 413–14.
We consider a non-exclusive list of affirmative links indicating a defendant intentionally
or knowingly possessed contraband: (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 narcotics; (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
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00189-CR
Victor Manuel PEREZ, Appellant
v.
The STATE of Texas, Appellee
From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6059 Honorable Velia J. Meza, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: August 19, 2020
AFFIRMED
Victor Manuel Perez appeals his convictions for possession of less than one gram of
cocaine, and one to four grams of heroin with intent to deliver. He argues there is legally
insufficient evidence to support his convictions, and the trial court erred by denying his motions
to suppress and for a directed verdict. We affirm the judgments of conviction.
BACKGROUND
Perez was indicted for possession of cocaine and heroin. Perez pled not guilty, and the case
proceeded to a jury trial. The trial court admitted into evidence footage from a body camera, 04-19-00189-CR
pictures, and the physical evidence of the drugs. Four witnesses testified for the State, including
three officers with the San Antonio Police Department (SAPD) and a forensic scientist in the drug
section of the Bexar County Crime Lab.
According to witness testimony, SAPD officers Steven Jordan and Brian Brietzke received
a tip from an informant that narcotics were being sold at a laundromat on West Commerce Street.
Both officers testified the location was known for narcotics trafficking. Officers Jordan and
Brietzke, who were wearing plain clothes, established surveillance and saw Perez conduct several
“hand to hand” transactions with pedestrians who had walked up to him over the course of fifteen
to twenty minutes. Officer Jordan requested that a uniformed officer make contact with Perez.
SAPD officer Bryant Soldevila, who was wearing his uniform, arrived at the laundromat,
and Perez then started walking away from Officer Soldevila. Officer Soldevila detained Perez,
searched his pockets, and found a small baggie containing a substance in Perez’s front right pocket.
Four other small baggies were found on the ground near where Perez was standing. Officer
Brietzke field tested the substance in each baggie. The substances in the baggies found on the
ground consisted of cocaine and black-tar heroin, and the baggie found in Perez’s pocket contained
black-tar heroin.
During trial, defense counsel moved to suppress evidence from Officer Soldevila’s search
of Perez and moved for a directed verdict. The trial court denied the motions. The jury found Perez
guilty of possession of cocaine and heroin, the trial court imposed Perez’s sentences, and Perez
filed a timely notice of appeal.
DISCUSSION
Perez presents the following two issues on appeal: (1) “The evidence is legally insufficient
to sustain a conviction and the trial court erred in denying Appellant’s motion to suppress evidence
and motion for directed verdict [under the U.S. Constitution];” and (2) “The evidence is legally
-2- 04-19-00189-CR
insufficient to sustain [a] conviction and the trial court erred in denying Appellant’s motion to
suppress evidence and motion for directed verdict [under the Texas Constitution].”
A. Motion to Suppress & Motion for Directed Verdict
A point of error that is multifarious presents nothing for our review. County v. State, 812
S.W.2d 303, 308 (Tex. Crim. App. 1989). Furthermore, appellate briefs must contain a clear and
concise argument in support of the issues presented, with appropriate citations to authority. TEX.
R. APP. P. 38.1(i). Perez’s issues challenge the denial of two separate motions and the legal
sufficiency of the evidence; these are distinct legal issues. See, e.g., County, 812 S.W.2d at 30
(holding an issue challenging an evidentiary ruling and sufficiency is multifarious). Furthermore,
Perez’s brief does not contain any arguments or cite appropriate authorities regarding the denial of
his motion to suppress or motion for directed verdict. Because Perez’s issues and arguments relate
almost exclusively to the sufficiency of the evidence, we construe Perez’s issues as challenging
only the sufficiency of the evidence. We hold any issues about the denial of Perez’s motions are
waived. See id.
B. Legal Sufficiency
In reviewing the evidence to determine whether it is legally sufficient to support a
conviction, we consider all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). It is the jury’s responsibility to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson,
-3- 04-19-00189-CR
443 U.S. at 319. We determine “whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to the
verdict.” Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). “When the record supports
conflicting inferences, [we] must presume [the jury] resolved the conflicts in favor of the
prosecution and defer to that determination.” Id.
Perez argues there is legally insufficient evidence showing he possessed cocaine and heroin
because no evidence showed he possessed the baggies found on the ground and the substance in
the bag found in his pocket was not tested again in a lab. See TEX. HEALTH & SAFETY CODE
§§ 481.102, 481.115 (providing possession of heroin and cocaine are criminal offenses).
“‘Possession’ means actual care, custody, control, or management.” Id. § 481.002(38); see Tate v.
State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). “When the contraband is not in the exclusive
possession of the defendant, a fact finder may nonetheless infer that the defendant intentionally or
knowingly possessed the contraband if there are sufficient independent facts and circumstances
justifying such an inference.” Tate, 500 S.W.3d at 413–14.
We consider a non-exclusive list of affirmative links indicating a defendant intentionally
or knowingly possessed contraband: (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 narcotics; (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
-4- 04-19-00189-CR
amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
Id. at 414 (citing Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). However,
the ultimate test is “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?” Id. (citing 443 U.S. at 318-19). 1
Perez was present at the laundromat when the baggies were found, and he was seen
standing in an area of the parking lot behind the dumpsters, where the baggies were found on the
ground. Once he saw Officer Soldevila, Perez started walking away, which could show
consciousness of guilt. The other baggies found on the ground were in plain view. The cocaine
and heroin found on the ground and the heroin found in Perez’s pocket were packaged in the exact
same manner; in baggies that were tied shut, rather than zipped, and the baggies were
approximately the same size. The baggie in Perez’s pocket contained black-tar heroin, as did two
of the baggies found on the ground. Perez was observed making “hand to hand” transactions with
other pedestrians at the location for fifteen to twenty minutes, and the evidence showed the location
was known for narcotics trafficking. Although several other factors are not present, the existence
of all factors is not required to meet the Jackson standard. See id. A jury could rationally infer
from the evidence that Perez had possessed, but discarded, the baggies found on the ground. See
id.
The evidence also shows the baggies found on the ground were tested again in a Bexar
County lab by a forensic scientist. The heroin was measured at 1.515 grams, and the cocaine was
1 Perez cites to Texas Code of Criminal Procedure article 38.141, which provides a person may not be convicted of an offense under Chapter 481 of the Health & Safety Code, such as possession of a controlled substance, based solely on the testimony of a person acting covertly on behalf of a law enforcement agency or under the color of law enforcement. TEX. CODE CRIM. PROC. Art. 38.141(a). This section does not apply to this case because the witnesses were not covert actors and the evidence showing Perez possessed the drugs did not consist solely of the testimony of such covert actors.
-5- 04-19-00189-CR
measured at .117 grams. Although the baggie found in Perez’s pocket was not tested a second
time, and in a lab, this consideration relates to the weight of the evidence. The evidence is legally
sufficient to show Perez possessed the amounts of heroin and cocaine alleged in the indictment.
See id.
CONCLUSION
We affirm the judgments of conviction.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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