No. 01-06-00018-CR.
November 30, 2006 Do Not Publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 994634.
Panel consists of JUSTICES TAFT, KEYES, and HANKS.
TIM TAFT, Justice.
A jury found appellant, Javier Ruiz, guilty of possession with intent to deliver cocaine weighing at least 400 grams. See TEX. HEALTH SAFETY CODE ANN. § 481.112 (Vernon 2003). The trial court assessed punishment at 20 years in prison and a fine of $250,000.00. We address (1) whether the evidence was legally and factually sufficient to prove that appellant knowingly exercised care, custody, control, or management of the cocaine and (2) whether the trial court erred in denying appellant the ability to question the State''s expert witness regarding procedures and problems in the Houston Police Department ("HPD") Crime Laboratory. We affirm.
Factual Background
On July 17, 2004, HPD's Target Narcotic Enforcement Team received information regarding a narcotics transaction involving Refugio Cosio. HPD Deputies Dearmon and Green began surveillance of Cosio's residence that morning. Frequent activity that was consistent with drug-trafficking began shortly thereafter. The deputies observed Cosio leaving his residence in a black Jeep and followed him to a taqueria stand on Jones Road. Cosio drove to a Walgreens on Jones Road, got out of his black Jeep, talked briefly with a man driving a red pickup truck, and exchanged vehicles with him. Cosio returned a few minutes later, switched vehicles again, and left in his black Jeep. Cosio drove the black Jeep to a residence in a neighborhood off Jones Road ("the Staghill residence"). After 15 minutes, Cosio left the Staghill residence and drove to a Kroger's shopping center at Jones Road and West Road, parking near a McDonald's in the shopping center. Cosio briefly spoke with appellant and Jaime Lopez, who was a passenger in the Mitsubishi Lancer that appellant was driving, then got into the Mitsubishi Lancer and drove away. The deputies, afraid that their surveillance had been detected, returned to McDonald's. Appellant and Lopez entered the McDonald's, where they sat at a table talking. After 20 minutes, Cosio returned to McDonald's in the Lancer. Appellant and Lopez met Cosio in the parking lot and talked for a few minutes. Appellant and Lopez got into the Lancer, Cosio got into his black Jeep, and they all left McDonald's. While maintaining surveillance of the Lancer, the undercover deputies observed appellant perform an unsafe lane change and multiple failures to signal, but asked marked patrol units, dispatched to aid the deputies, to find their own probable cause before pulling the Lancer over. HPD Deputy Shaddox, in one of the marked units, and the undercover deputies observed appellant perform an unsafe lane change. Immediately, two marked patrol units, driven by HPD Deputies Shaddox and Wyatt, pulled the Lancer over. Deputy Shaddox walked up to the passenger side of the Lancer and asked appellant, the driver, for his driver's license and insurance. Appellant had neither, and Deputy Shaddox arrested him. Deputy Shaddox then asked Lopez if he had his driver's license. Because Lopez did not, Deputy Shaddox placed him in the rear seat of Deputy Wyatt's patrol car. After appellant signed a consent-to-search form, Deputy Wyatt began a search of the car, and Deputy Shaddox took appellant to jail. The scene was then turned over to the undercover narcotics officers. Two duffle bags were found in the trunk of the Lancer. The bags contained 50 bricks of cocaine, weighing 48.6 kilograms. Sufficiency of the Evidence
In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to prove that he knowingly exercised care, custody, control, or management of the cocaine beyond a reasonable doubt. A. The Law
To prove the offense of possession of a controlled substance, the State must show that the accused (1) exercised actual care, custody, control, or management of 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. §§ 81.002(38), 481.112(a) (Vernon 2003); Nhem v. State, 129 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2004, no pet.). These elements may be established by either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 402, 405 — 06 (Tex.Crim.App. 2005) (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995)). When the accused is not in exclusive possession of the place where the contraband is found, one cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes an affirmative link between the accused and the contraband, i.e., independent facts and circumstances that affirmatively link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. 1981); Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In other words, the State must establish that the accused's connection with the substance was more than just fortuitous. Brown, 911 S.W.2d at 747. The Court of Criminal Appeals has identified several factors that may help to establish an affirmative link between the accused and the contraband, including whether (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the side of the car on which the accused was sitting; (6) the place where the contraband was found was not enclosed; (7) the odor of the drug was present in the vehicle; (8) paraphernalia for use of the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; and (13) affirmative statements by the accused connected the accused to the contraband. Roberson, 80 S.W.3d at 735. Courts have also considered whether (14) traces of the contraband were found on the accused, (15) a large sum of money was found on the accused, and (16) how much contraband was found. Poindexter, 153 S.W.3d at 412; Roberson, 80 S.W.3d at 735 n. 2; Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd). Although several factors relevant to establishing an affirmative link may be identified, the number of factors actually supported by the evidence is not as important as the logical force that they collectively create to prove that a crime has been committed. Roberson, 80 S.W.3d at 735 (quoting Whitworth, 808 S.W.2d at 569). B. Legal Sufficiency In his first point of error, appellant argues that the evidence is legally insufficient to prove beyond a reasonable doubt that he knowingly exercised care, custody, control, or management of the cocaine. In conducting a legal-sufficiency review, we view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). In conducting our review of the legal sufficiency of the evidence, we do not re-evaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). Under a legal-or factual-sufficiency review, the fact finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. McKinny v. State, 76 S.W.3d 463, 468 — 69 (Tex. App — Houston [1st Dist.] 2002, no pet.). The jury may believe or disbelieve any part of a witness's testimony. See id. Appellant argues that the evidence is legally insufficient to support his conviction because, in appellant's view, the only arguable link between him and the drugs in this case was that he was a registered co-owner and driver of the vehicle in which the drugs were found. Appellant contends that he did not have knowledge of the drugs or of "what was going on between [Cosio] and [Lopez]." Appellant also emphasizes the extent to which the typical affirmative links are missing in this case. We need not consider affirmative-link factors that are absent from the evidence, however. See Hurtado v. State, 881 S.W.2d 738, 745 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The only test that we must apply is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id. Viewed in the light most favorable to the verdict, the evidence shows that appellant was seen meeting with Cosio, who was under surveillance for drug trafficking, and was involved in a suspicious exchange of vehicles. Deputy Wyatt smelled the overwhelming and distinct odor of cocaine when appellant was stopped for a traffic violation. See Robinson v. State, 174 S.W.3d 320, 327 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (stating that odor of marijuana in vehicle can affirmatively link defendant within vehicle to contraband). Appellant was also a registered owner and the driver of the vehicle in which the cocaine was found. See Acosta v. State, 752 S.W.2d 706, 708 (Tex.App.-Corpus Christi 1988, pet. ref'd) (stating that when defendant is registered owner of vehicle and driving vehicle, defendant can be affirmatively linked to drugs in vehicle). The police recovered 50 bricks of cocaine from appellant's vehicle, weighing 48.28 kilograms, with a street value of five million dollars. See Villegas v. State, 871 S.W.2d 894, 896 — 97 (Tex.App.-Houston [1st Dist.] 1994, pet ref'd) (stating that, in determining if sufficient affirmative links exist showing defendant's knowledge and control of contraband, circumstantial factors can be examined, such as amount of contraband found). From this evidence, a rational jury could have found that the evidence established an affirmative link between appellant and the cocaine. See Roberson, 80 S.W.3d at 735. Accordingly, we hold that the evidence was legally sufficient to support the jury's implicit finding that appellant exercised actual care, custody, control, or management of the cocaine. See Robinson, 174 S.W.3d at 329 — 30. We overrule appellant's first point of error. C. Factual Sufficiency
In his second point of error, appellant argues that the evidence was factually insufficient to prove that he knowingly exercised care, custody, control, or management of the cocaine beyond a reasonable doubt. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex.Crim.App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). In support of his factual-sufficiency challenge, appellant relies on the same evidence and arguments that he raised in his legal-sufficiency challenge, pointing to evidence weighing against the jury's verdict, as well as evidence and reasons that he claims make the State's evidence so obviously weak as to undermine confidence in the verdict. Appellant contends that he introduced evidence that he did not know about the cocaine in the vehicle and that he was not aware of any meeting between Lopez and Cosio. Appellant testified that he was merely driving Lopez on an errand because Lopez had been drinking the previous night. However, the State introduced evidence that (1) Cosio talked to appellant and Lopez in the McDonald's parking lot, where they exchanged something, and Cosio left McDonald's driving the Lancer, consistent with drug trafficking; (2) Lopez and appellant did not appear to order any food while at McDonald's, but seemed only to be waiting for Cosio's return; (3) Lopez and appellant met Cosio in the McDonald's parking lot when Cosio returned, where the three conversed, they exchanged something again, and Lopez and appellant got into the Lancer to drive away; (4) appellant and Lopez did not have their licenses or vehicle registration, which is common with drug dealers who do not want to be detected; (5) the certified public document from the Texas Department of Transportation regarding the registered owners of the Lancer showed that appellant and Lopez owned the car together; and (6) cocaine has a very strong odor, even if sealed, and the odor was immediately noticeable and overwhelming to Deputy Wyatt. Under a factual-sufficiency review, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. McKinny, 76 S.W.3d at 468 — 69. The jury may simply have disbelieved appellant's testimony. See id. Viewing the evidence in a neutral light, a rational jury could have found that appellant knowingly exercised care, custody, control, or management of the cocaine. Appellant also contends that Deputy Dearmon gave inconsistent testimony. Deputy Dearmon testified at Lopez's trial that Cosio proceeded to the Staghill residence after having left the taqueria in the red truck, but Deputy Dearmon testified at appellant's trial that Cosio drove the red truck from Walgreens to the taqueria and that the deputies lost Cosio after he had left the taqueria. Deputy Dearmon testified that he was uncertain as to whether Cosio went to the Staghill residence or if the deputies had lost Cosio in the red truck prior to that. Additionally, Deputy Dearmon testified that he saw Cosio, Lopez, and appellant together in the McDonald's parking lot, but he later testified, during cross-examination, that he may have seen only Cosio and Lopez together. We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408 — 09 (Tex.Crim.App. 1997). The evidence linking appellant to the cocaine is circumstantial. However, in circumstantial-evidence cases, it is not necessary that every fact and circumstance point directly and independently to the guilt of the accused. See Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App. 1983). It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Id. Every case must be reviewed on its own facts and circumstances to determine the sufficiency of the evidence. Id. at 775. Although appellant points out that specific affirmative links were not present, we note that it is not the number of affirmative links that matters, but the logical force that they collectively create. See Roberson, 80 S.W.3d at 735 (quoting Whitworth, 808 S.W.2d at 569). After viewing all of the evidence neutrally, we hold that the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817. Therefore, the jury was rationally justified in finding that the evidence established an affirmative link between the accused and the cocaine. See Robinson, 174 S.W.3d at 330. Accordingly, we hold that the evidence is factually sufficient to prove that appellant knowingly exercised care, custody, control, or management of the cocaine. See id. We overrule appellant's second point of error. Cross-Examination of Expert Witness
In his third point of error, appellant argues that it was error for the trial court to deny appellant the ability to question the State's expert witness regarding procedures and problems in the HPD Crime Laboratory because such evidence was relevant. Keith Carpenter, a forensic chemist for HPD, testified that he had performed an analysis of cocaine taken from appellant's vehicle. During cross-examination, defense counsel inquired about previous problems in the HPD crime laboratory and issues surrounding its re-certification. The prosecutor objected to the relevancy of this testimony, and the trial court sustained the objections. The trial court allowed testimony, against objection of the prosecution, of whether Carpenter was working at the HPD crime laboratory when the dry-lab testing was taking place. To preserve error in the exclusion of evidence, a party must make a sufficient offer of proof and obtain a ruling. TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.1(a)(1)(A); Hernandez v. State, 127 S.W.3d 206, 216 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made know to the court by offer of proof or was apparent from the context within which questions were asked. TEX. R. EVID. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998); Hernandez, 127 S.W.3d at 216; Garza v. State, 846 S.W.2d 936, 939 (Tex.App.-Houston [1st Dist] 1993, pet. ref'd). An offer of proof must show that the excluded evidence is relevant and admissible and must show the facts that a defendant wishes to prove. Edwards v. State, 178 S.W.3d 139, 146 (Tex.App.-Houston [1st Dist] 2005, no pet.); Railsback v. State, 95 S.W.3d 473, 478 (Tex.App.-Houston [1st Dist] 2002, pet. ref'd). An offer of proof must be specific enough to enable the reviewing court to determine the admissibility of the disputed evidence; only a short, factual recitation of what the testimony would show is required. In re N.R.C., 94 S.W.3d 799, 806 (Tex.App.-Houston [14th Dist] 2002, pet denied). Appellant's trial counsel did not make an offer of proof or present a bill of exception to the trial court to reveal the anticipated substance of Carpenter's excluded testimony. See TEX. R. EVID. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999). Appellant did not make the substance of Carpenter's testimony known to the court by offer of proof, and the substance of that testimony was not apparent from the context. See Guidry, 9 S.W.3d at 153; Warner, 969 S.W.2d at 2; Hernandez, 127 S.W.3d at 216; Garza, 846 S.W.2d at 939. Because no offer of proof was made and the record does not indicate what the excluded testimony would have been, appellant has waived any error, and nothing is presented for review. See TEX. R. EVID. 103(a)(2); Guidry, 9 S.W.3d at 153. We overrule appellant's third point of error. Conclusion
We affirm the judgment of the trial court.