NO. 14-07-00410-CR
Opinion filed July 15, 2008.
Appeal from the 344th District Court Chambers County, Texas Trial Court Cause No. 13628.
Panel consists of Justices YATES, GUZMAN, and BROWN.
LESLIE B. YATES Justice.
Appellant Maurice Rachal appeals from his conviction for possession with intent to deliver four hundred or more grams of cocaine. In five issues, appellant challenges the legal and factual sufficiency of the evidence and contends the trial court erred in denying his motion to preclude impeachment. We affirm.
I. Background
Around 9:00 p.m. on February 13, 2005, Trooper Rhyan Droddy stopped a Chevrolet Trailblazer on Interstate 10 in Chambers County, Texas. The Trailblazer was towing a lowboy trailer carrying a 1984 GMC pickup truck. Trooper Droddy initiated the traffic stop because the trailer license plate was secured in such a manner that the entire plate could not be read and because the vehicle was traveling over the speed limit. Appellant was driving, and Jermaine Phillips was the passenger. After asking appellant to step out of the vehicle and Phillips to remain in the vehicle, Trooper Droddy questioned the men separately. In response to Trooper Droddy's inquiries, Phillips stated that he had recently purchased the truck and that his cousin had rented the Trailblazer, but no rental agreement was present. Phillips did not know appellant's last name, but only knew appellant as "Reecy," even though he told Trooper Droddy that appellant was a long-term friend who lived down the road. Phillips claimed that they were taking the truck to Baton Rouge to have wiring and rear-end work done. When Trooper Droddy questioned appellant, appellant said that the truck belonged to a friend of a cousin. Appellant identified Phillips as his cousin and claimed he was someone appellant had known all his life. Appellant gave Phillips's last name as "Campbell" instead of "Phillips." Appellant said the truck's engine had caught fire and that they were taking the truck to Baton Rouge for engine work. Appellant told Trooper Droddy that he was a truck driver, but a license check revealed that appellant's license had been suspended. Trooper Droddy testified that appellant seemed nervous and answered questions about his name and address without a thought, but that he responded with a pause and a "huh" when asked about the vehicles and the trip. Because he was suspicious of criminal activity, Trooper Droddy sought and obtained permission from Phillips to search the Trailblazer and the truck. There was no luggage in either vehicle, but lug wrenches in the back of the Trailblazer led Trooper Droddy to suspect something was hidden in the tires of the truck. It started to rain, and Phillips agreed to move the Trailblazer to a nearby covered gas station. To facilitate further inspection of the tires, a wrecker truck was used to hoist the truck into the air. Upon raising the truck, Deputy Tony Viator, who had been called in to assist Trooper Droddy, noticed that while the underside of the truck was extremely dirty, the oil and transmission pans appeared to have been wiped down. Deputy Viator testified that several bolts were missing from the pans and that the area was very clean. Although the truck was old and beat up, Deputy Viator testified that someone had obviously gotten underneath, loosened the oil and transmission pans, cleaned them up, and put them back on the truck. Trooper Droddy requested permission from Phillips to move the Trailblazer, trailer, and truck to a nearby auto shop. When Phillips would neither give permission nor deny it, Trooper Droddy called in a police dog trained to detect the odor of controlled substances. After the dog "alerted" to the truck, Trooper Droddy decided to move the Trailblazer and truck to the auto shop. At the auto shop, two packages wrapped in duct tape were discovered inside the oil pan of the truck. Suspecting that the packages contained a controlled substance, Trooper Droddy placed appellant and Phillips under arrest. A video camera mounted in the patrol car recorded the entire traffic stop and was later admitted into evidence. After being arrested, appellant and Phillips were left alone in the police car while the officers finished their investigation. The video camera continued to record during this time, and while appellant and Phillips are not in the camera's line of sight, the camera recorded their conversation. At one point, Phillips said, "I know we should have put some oil in the pan," and "I knew when we got to the shop we were f___ed." Appellant did not respond to either statement. Although portions of the audio tape are difficult to decipher, it appears that on the way to the police station, Phillips told Trooper Droddy, "It's my action. I take full responsibility. It's my action." At trial, appellant denied having any knowledge of the packages in the oil pan. The packages were fifty-eight percent cocaine by weight and weighed 1.99 kilograms. Sergeant Brian Nichols testified that 1.99 kilograms of cocaine, when sold in bulk on the street in Houston, had a value of $15,000 per kilogram. However, if broken down into individual doses, the street value would increase to approximately $100,000 per kilogram. Sergeant Nichols testified the cocaine could be further diluted to increase the quantity, conceivably raising the value to $400,000 per kilogram. According to Sergeant Nichols, 1.99 kilograms of cocaine is not an amount intended for personal use, and someone transporting that amount definitely intended to distribute the cocaine for profit. Sergeant Nichols also testified that because most narcotics coming into the United States are brought across the border from Mexico into the Houston area, Houston is considered a hub city. Once in Houston, the larger loads are broken down into smaller quantities for distribution and then transported to other cities such as Baton Rouge. The jury found appellant guilty of possession with intent to deliver four hundred grams or more of cocaine and sentenced him to thirty years in prison. This appeal followed. II. Sufficiency of the Evidence
A. Standard of Review
Appellant contends the evidence is legally and factually insufficient to support his conviction. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). We accord great deference "`to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. See Jackson, 443 U.S. at 326. In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). We apply a two prong test to determine whether there is some objective basis for finding that (1) the evidence in support of the jury's verdict, although legally sufficient, is nevertheless so weak that the verdict seems clearly wrong and unjust, or (2) in considering conflicting evidence, the verdict, albeit legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 414-15. Although a factual sufficiency review authorizes an appellate court to act in the capacity of a so-called "thirteenth juror," due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. See id. at 416-17; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). Appellant was charged both as a principal and under the law of parties with possession with intent to deliver. To prove the offense of possession of a controlled substance as a principal actor, the State was required to show that appellant (1) exercised actual care, control, and management over the controlled substance and (2) was conscious of his connection with the controlled substance and knew what it was. See TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38), 481.112(a) (Vernon 2003 Supp. 2007); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). To convict under the law of parties, the State must show appellant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003). Accordingly, proving possession of a controlled substance as a party requires showing that (1) another person possessed the contraband and (2) with the intent that the offense be committed, appellant solicited, encouraged, directed, aided, or attempted to aid the other's possession. Woods v. State, 998 S.W.2d 633, 636 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). For conviction, either as principal or as a party to the offense, the State must show knowledge of the presence of the controlled substance. See TEX. HEALTH SAFETY CODE ANN. § 481.115(a) (Vernon 2003). The evidence used to prove these elements can either be direct or circumstantial. Brown, 911 S.W.2d at 747. Control over contraband may be exercised jointly by more than one person. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988). However, mere presence where a controlled substance is being possessed by others does not, by itself, support a finding that a person is a party to an offense. See Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). The State must establish that the defendant's connection to the controlled substance was more than just fortuitous. Id. at 161. Presence or proximity, when combined with either direct or circumstantial evidence, may be sufficient to establish actual care or control of the controlled substance beyond a reasonable doubt. Id. at 162. B. Possession
In his first and second issues, appellant contends the evidence was legally and factually insufficient to show that he possessed the cocaine or was a party to possessing the cocaine. The court's charge authorized the jury to convict appellant either as a principal or as a party to possession with intent to deliver more than four hundred grams of cocaine. The jury returned a general verdict finding appellant guilty. When, as here, alternative theories of committing the same offense are charged and the jury returns a general guilty verdict, the verdict stands if the evidence supports any of the theories charged. See Brooks v. State, 990 S.W.2d 278, 283 (Tex.Crim.App. 1999). Thus, we will first apply the legal and factual sufficiency standards of review to the evidence of appellant's guilt as a party. Because appellant was not in exclusive possession of the vehicle where the contraband was found, the State must affirmatively link appellant to the contraband. Brown, 911 S.W.2d at 748. Texas courts have summarized a non-exclusive list of potential links establishing a person's possession of contraband: (1) the defendant's presence when a search is conducted, (2) whether the contraband was in plain view, (3) how close and accessible the drugs were to the defendant, (4) whether the defendant was under the influence of narcotics when arrested, (5) the defendant's possession of other contraband or narcotics when arrested, (6) any incriminating statements the defendant made when arrested, (7) whether the defendant made furtive gestures or attempted to flee, (8) any odor of contraband, (9) the presence of other contraband or drug paraphernalia, (10) the defendant's ownership or right to possess the place where the drugs were found, (11) whether the place where the drugs were found was enclosed, (12) the defendant's possession of a large amount of cash, and (13) any conduct by the defendant indicating a consciousness of guilt. See Evans, 202 S.W.3d at 162 n. 12; Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The question, therefore, is whether the evidence is sufficient to show appellant knew Phillips was transporting cocaine and, with the intent that the offense be committed, aided or attempted to aid Phillips in exercising care, custody, or control over the cocaine. See TEX. PENAL CODE ANN. § 7.02(a)(2); Woods, 998 S.W.2d at 636 (stating that evidence must show another person possessed contraband and appellant, with intent that offense be committed, solicited, encouraged, directed, aided, or attempted to aid other's possession). Appellant argues the evidence is insufficient because this case lacks several of the above links: the cocaine was recovered from a place that was neither in close proximity to nor convenient to appellant, appellant was not found with a large amount of cash or other controlled substances on his person, there was no odor of drugs, no drug paraphernalia was found, appellant's physical condition did not indicate recent consumption of cocaine, appellant made no furtive gestures or effort to flee, and no fingerprints or other special connection were found to link appellant to knowledge of the cocaine. Contrary to appellant's assertion, it is not the number of links which is dispositive, but rather the logical force of all the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162. Appellant was driving the Trailblazer when Trooper Droddy initiated the traffic stop. Appellant claimed to be a truck driver, yet his driver's license had been suspended. The Trailblazer had been rented by a third, unknown party, and no rental agreement was present. Although appellant and Phillips both claimed to reside in Houston, a city with numerous auto repair shops, they were using a rented vehicle to haul a twenty-year-old truck in extremely poor condition to Baton Rouge, for repairs, at 9:00 at night. The men were destined to arrive in Baton Rouge around 1:00 in the morning, a time when most repair shops are closed, yet neither brought an overnight bag or personal necessities. Moreover, they were driving a well-known drug distribution route from a hub city. Trooper Droddy testified that appellant seemed nervous and hesitated when asked questions pertaining to the trip and the truck. Appellant and Phillips contradicted each other on important details: (1) appellant claimed Phillips was his cousin whom he had known all his life, but Phillips said appellant was a friend who lived down the street, (2) appellant said a friend of a cousin owned the truck, but Phillips claimed to have recently purchased the truck, and (3) appellant said the truck's engine had caught fire and needed work, but Phillips stated the truck needed wiring and rear-end work. Phillips did not know appellant's last name, and appellant incorrectly said Phillips's last name was "Campbell." Appellant attempted to show that he may have simply been confused about Phillips's last name by offering testimony that Phillips's aunt was named Campbell. However, it is within the province of the jury to decide what weight to give contradictory testimonial evidence, and the jury may have chosen to disbelieve his explanation. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). In addition, the State points out that both appellant and Phillips demonstrated a willingness to help as long the search focused on the tires. But when Trooper Droddy suggested moving the Trailblazer and truck to a place where the truck could be lifted so as to access the underside, appellant did not offer any further help or assistance. Appellant's silence in the face of Phillips's incriminating statements, made while appellant and Phillips were alone in the police car, is also significant. Throughout their recorded conversation, appellant periodically responded to Phillips's comments and remarks. However, when Phillips said, "I knew when we got to the shop we were f___ed," and "I know we should have put some oil in the pan," appellant did not respond to either statement. These statements clearly implicated appellant in commission of the offense by assuming appellant's knowledge of and participation in concealing and transporting the cocaine. As the fact finder, the jury is free to draw reasonable inferences and make reasonable deductions from the evidence, as presented within the context of the crime. Price v. State, 227 S.W.3d 264, 266 (Tex.App.-Houston [1st Dist.] 2007, pet. dism'd). Given the context, Phillips's remarks are the type of comments that a reasonable person could be expected to deny or refute if untrue. The jury could therefore have reasonably inferred from appellant's silence that he knew about the cocaine in the oil pan and was assisting Phillips in concealing and transporting it. See Paredes v. State, 129 S.W.3d 530, 535-36 (Tex.Crim.App. 2004) (holding that appellant's silence while codefendant described to a third person how he and appellant had murdered three people indicated appellant's adoption of the statements); Alvarado v. State, 912 S.W.2d 199, 214-15 (Tex.Crim.App. 1995) (allowing admission of accomplice's statements because by his silence, defendant acquiesced to statements including him in commission of murder); Bean v. State, No. 14-96-01112-CR, 1998 WL 161477, at *2 (Tex.App.-Houston [14th Dist.] Apr. 9, 1998, no pet.) (not designated for publication) (finding appellant's silence in face of co-defendant's statement that they had "just kicked the s — — out of [someone]" qualified as an admission); see also Elizondo v. State, No. 14-98-00493-CR, 2000 WL 330093, at *1 (Tex.App.-Houston [14th Dist.] Mar. 30, 2000, pet. ref'd) (not designated for publication) (noting that interpreting silence as an adoptive admission is based on theory that the normal human reaction would be to deny such a statement if it were untrue). At trial, appellant offered an alternative explanation for his lack of response to Phillips's incriminating statements. The entire stop took place over almost three hours, and much of that time appellant and Phillips were off to one side by themselves. During this time, appellant contends that Phillips had ample opportunity to advise him about the cocaine hidden in the oil pan, and thus he was not surprised by Phillips's statements. In support of this, appellant points to Phillips's willingness to take complete responsibility and argues that Phillips engineered the entire operation and that appellant was simply an unknowing participant. Reconciliation of conflicts in the evidence is within the exclusive province of the jury. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The jury watched the videotape, observed appellant's and Phillips's behavior, and heard Phillips's statements to appellant. As the sole judge of the weight and credibility given to witness testimony, the jury could have chosen to disregard appellant's explanation and Phillips's statements claiming responsibility. See id. Viewing the evidence in the light most favorable to the verdict, we conclude that the factors linking appellant to knowledge of the cocaine and the logical inferences that may reasonably be drawn from these factors together provide sufficient evidence to establish beyond a reasonable doubt that appellant was a party to possessing the cocaine See Salinas, 163 S.W.3d at 737; see also Robinson v. State, 174 S.W.3d 320, 329-30 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (finding evidence legally sufficient to show possession where appellant was passenger in truck, two kilograms of cocaine were found in truck, passengers and driver gave conflicting stories, truck contained no luggage for overnight trip, and loaded firearm was found in vehicle); Gipson v. State, No. 14-01-00760-CR, 2002 WL 31318610, at *2 (Tex.App.-Houston [14th Dist.] Oct. 17, 2002, pet. ref'd) (not designated for publication) (holding evidence was legally sufficient to show knowing possession where cocaine was found in backseat, appellant was nervous, and appellant and driver gave conflicting testimony about trip, their relationship, and appellant's occupation); Fields v. State, 932 S.W.2d 97, 104 (Tex.App.-Tyler 1996, pet. ref'd) (holding evidence was legally sufficient to establish possession where appellant had possession of and was a passenger in rented vehicle, drugs were found under hood of car, car occupants gave conflicting stories, and appellant carried inadequate personal items for stated trip). Further, when viewed in a neutral light, the circumstantial evidence-the implausible nature of appellant's story, the contradictory statements, the volume of cocaine involved, and the logical inference from Phillips's statements that the men were working together-leads to the conclusion that appellant knew about the cocaine. It was therefore reasonable for the jury to find that appellant was a party to helping Phillips possess and exercise control over the cocaine. We conclude that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and the proof of guilt is not so weak as to undermine confidence in the jury's determination. See Watson, 204 S.W.3d at 414-15; see also Deyon v. State, No. 01-03-00775-CR, 2005 WL 3005493, at *4 (Tex.App.-Houston [1st Dist.] Nov. 10, 2005, no pet.) (mem. op., not designated for publication) (concluding evidence appellant exercised control over cocaine was factually sufficient despite absence of several linking factors); Robinson, 174 S.W.3d at 330 (concluding evidence was factually sufficient to prove possession because jury was free to resolve conflicting views of evidence in favor of prosecution). We overrule appellant's first and second issues. C. Intent to Deliver
In his third and fourth issues, appellant claims the evidence is legally and factually insufficient to show that assuming he possessed the cocaine, he did so with the intent to deliver. Intent to deliver may be shown by circumstantial evidence, including expert testimony by experienced law enforcement officers. Reed v. State, 158 S.W.3d 44, 48-49 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). As additional evidence of intent, courts have considered factors such as the nature of the location of the defendant's arrest, the quantity of narcotics the defendant possessed, the manner of packaging of the narcotics, the presence or absence of drug paraphernalia, the defendant's possession of a large amount of cash, and his status as a narcotics user. Id. Several of the factors showing intent to deliver were present in this case. Appellant was arrested while traveling from Houston to Baton Rouge on Interstate 10, a well-known drug distribution route. Sergeant Nichols testified that two kilograms of cocaine was not an amount intended for personal use. See Robinson, 174 S.W.3d at 331 (finding two kilograms of cocaine was in excess of typical amount possessed for personal use). Sergeant Nichols stated that in the Houston area, a person transporting or traveling with that amount of cocaine was definitely intending to distribute it for profit. No drug paraphernalia for use of the cocaine was found in the truck or on appellant's person. See Mack v. State, 859 S.W.2d 526, 529 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (finding that absence of paraphernalia supported inference that cocaine was intended for delivery rather than consumption). Sergeant Nichols also testified that when broken down for individual use, the street value of the cocaine would be approximately $100,000 per kilogram, or up to $400,000 per kilogram if further diluted. See id. at 528, 529 (holding 8.9 grams of crack cocaine, valued at $600, was a sufficient amount from which to infer an intent to deliver). Viewing all this evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that appellant intended to deliver or aid in the delivery of the two kilograms of cocaine. See Salinas, 163 S.W.3d at 737; Utomi v. State, 243 S.W.3d 75, 83 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) (finding evidence legally sufficient to show intent to deliver where police recovered 35 grams of crack cocaine with approximate street value of $3,500 from apartment where appellant was sleeping, no paraphernalia for personal consumption of cocaine was found, and appellant was not lessee of apartment). After examining all the evidence neutrally, we further conclude that the proof of appellant's guilt was not so obviously weak as to undermine confidence in the jury's determination, nor was the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Watson, 204 S.W.3d at 414-15; Robinson, 174 S.W.3d at 331-32 (holding evidence was factually sufficient to support verdict on intent to deliver, despite no evidence showing appellant knew about drug trade). We overrule appellant's third and fourth issues. III. Impeachment with Prior Convictions
In his fifth issue, appellant claims the trial court erred in denying his motion to preclude the State from impeaching him with his prior convictions. The trial court denied appellant's motion with respect to two prior felony convictions for burglary, a misdemeanor conviction for assault, and a misdemeanor conviction for failure to identify. After jury voir dire, the trial court indicated it might change its ruling with regard to the misdemeanor assault. Appellant chose not to testify. Here, appellant argues the trial court erred in denying his motion because the prior convictions were either outside the ten year time limit or were not necessarily crimes of moral turpitude. See TEX. R. EVID. 609. The State responds that appellant failed to preserve error with respect to this issue. To preserve error on a trial court's ruling allowing the State to impeach a defendant with prior convictions, the defendant must have actually testified. Caballero v. State, 919 S.W.2d 919, 923 (Tex.App.-Houston [14th Dist.] 1996, writ ref'd); see also Luce v. United States, 469 U.S. 38, 41, 43 (1984) (holding that a defendant must actually testify to preserve error on improper impeachment under Federal Rule of Evidence 609(a)). Without a factual record of the defendant's testimony, a reviewing court would be speculating if it attempted to weigh the probative value of the proffered testimony against its prejudicial effect. See Caballero, 919 S.W.2d at 923. The alleged harm would also be speculative because the trial court could change the previous ruling and prohibit the impeachment, or the prosecutor might decide not to use the prior conviction. Id. Accordingly, because appellant chose not to testify, we hold that he failed to preserve this complaint for appellate review. See Jackson v. State, 992 S.W.2d 469, 479-80 (Tex.Crim.App. 1999) (holding appellant who did not testify waived complaint about trial court's refusal to limit State's ability to cross examine him on prior offenses); Caballero, 919 S.W.2d at 923 (holding defendant's decision to not testify waived error regarding trial court's ruling allowing State to impeach defendant with prior convictions). We overrule appellant's fifth issue. We affirm the trial court's judgment.