Armando Garza v. State

Garza v. State NO. 10-89-216-CR IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * *           ARMANDO GARZA,                                                                                             Appellant           v.           THE STATE OF TEXAS,                                                                                             Appellee * * * * * * * * * * * * * From 87th Judicial District Court Freestone County, Texas Trial Court # 89-066-CR * * * * * * * * * * * * * O P I N I O N * * * * * * *           Appellant was convicted in a bench trial of possessing more than fifty pounds of marihuana. The court made a deadly weapon finding and sentenced him to twenty years in prison. Appellant contends the evidence is insufficient to prove that he knowingly possessed the marihuana and attacks the deadly weapon finding. The judgment will be affirmed.           Officer Price searched a van after smelling a "strong" odor of unburned marihuana in the vehicle. He found hidden underneath the chassis fifty-one pounds of marihuana and a notebook of names and numbers. The notebook containing Appellant's name appeared to be drug-related. Within Appellant's reach where he was sitting in the rear of the vehicle were five ounces of marihuana hidden under a mattress and marihuana seeds on the floorboard. Three guns and ammunition were under the front passenger's seat wrapped in a bag. Appellant failed to appear after his indictment, and his bail was forfeited.           His first point is that the evidence is insufficient to prove that he intentionally and knowingly possessed the marihuana. A defendant must exercise care, custody, control, and management over illicit drugs, knowing them to be drugs, before he is guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). If the defendant is not in sole possession of the premises where drugs are found, the state must prove an affirmative link between the contraband and the defendant to establish his possession. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). An affirmative link is established by facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and that he exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389.           The following facts and circumstances were sufficient to affirmatively link Appellant to the marihuana. First, the odor of marihuana in the van. See Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972). Second, his proximity to the marihuana and seeds in the rear of the vehicle where he was sitting. See Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Lewis v. State, 502 S.W.2d 699, 701 (Tex. Crim. App. 1973). Third, the guns in the vehicle. See Wilson v. State, 495 S.W.2d 927, 929 (Tex. Crim. App. 1973). Finally, Appellant's failure to appear which resulted in the bond forfeiture. See Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (flight from prosecution). The evidence is sufficient to prove beyond a reasonable doubt that Appellant knowingly possessed the marihuana inside the vehicle. His possession of the marihuana inside the vehicle and the notebook containing his name were affirmative links between him and the marihuana found underneath the van. See Hudson v. State, 643 S.W.2d 162, 163 (Tex. App.--Austin 1982, pet. ref'd). Point one is overruled.           In point two Appellant argues that the evidence is insufficient to prove that he possessed over fifty pounds of marihuana. Specifically, he asserts that the marihuana weighed less than fifty pounds because of the seeds it contained. The definition of marihuana excludes sterilized seeds incapable of germination. Tex. Health & Safety Code Ann. § 481.002(26)(E) (Vernon 1991). A defendant must prove that the marihuana contained seeds which should have been excluded from its weight. Elkins v. State, 543 S.W.2d 648, 649-50 (Tex. Crim. App. 1976).           Appellant stipulated that the marihuana weighed over fifty pounds. Once made, this stipulation became a judicial admission he cannot contradict. See Wallace v. State, 478 S.W.2d 499, 500 (Tex. Crim. App. 1972); Davidson v. State, 737 S.W.2d 942, 948 (Tex. App.--Amarillo 1987, pet. ref'd). Assuming that the stipulation was not a judicial admission, Appellant nevertheless failed to prove that the marihuana contained "sterilized seeds of the plant . . . incapable of germination"; he proved only that thirty-one pounds of the marihuana contained fourteen-percent seeds, "zero-percent germinated." Accordingly, point two is overruled.           The court must affirmatively make a deadly weapon finding if the defendant "used or exhibited a deadly weapon" while committing a felony offense. Tex. Code Crim. Proc. Ann. art. 42.12(3g)(a)(2) (Vernon Supp. 1991). Appellant complains in point three that the evidence is insufficient to support the deadly weapon finding. Although stated as a sufficiency question, his argument actually involves statutory construction. See Patterson v. State, 769 S.W.2d 938, 940-41 (Tex. Crim. App. 1989).           "Use" is "any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." Id. at 941. "Exhibiting" means displaying the weapon. Id. Although Appellant did not display the guns found underneath the right front seat, the question is whether he used them to facilitate his possession of the marihuana.           In Patterson the defendant, who was found guilty of possessing methamphetamine, told the arresting officer that he had a gun nearby. Although the officer had difficulty finding the weapon, the court nevertheless held that a rational trier of fact could have found that the defendant used the firearm to facilitate his possession of the drugs. Id. at 942.           The three guns in the van were easily accessible to any of its occupants. Guns are often used to protect illegal narcotics and the people possessing them. Based on the record as a whole, any rational trier of fact could have found that Appellant used the guns, merely by possessing them, to facilitate his possession of the marihuana. See id. Point three is overruled and the judgment is affirmed.                                                                                   BOB L. THOMAS                                                                                  Chief Justice Before Chief Justice Thomas, Chief           Justice McDonald (Retired) and           Justice James (Retired) Affirmed Opinion delivered and filed March 28, 1991 Do not publish See Tex. R. Civ. P. 166a(i); Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004). Azua appeals. We will affirm.      In a no-evidence motion for summary judgment, the non-movant must “produce[] summary judgment evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Ridgway at 600. “More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). “In reviewing a no-evidence summary judgment motion, we examine the record in the light most favorable to the nonmovant . . . .” Id.      The sole ground stated in Dr Pepper’s motion was that there was no evidence that it was negligent. The elements of negligence are: “There must be a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.” D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); see Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003) (plurality op.). Dr Pepper’s motion did not contend that there was no evidence of damages. We assume without deciding that Azua produced some evidence of duty and breach. Nonetheless, Azua produced no evidence of proximate causation.      As to proximate cause, Dr Pepper contends only that there was no evidence of foreseeability. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). “[T]he foreseeability element of proximate cause . . . requires that ‘the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.’” Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994) (quoting 1 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 2.04 (1987)) (emphasis in Browning-Ferris); see D. Houston, 92 S.W.3d at 454. “The foreseeability of a back injury in connection with regular lifting of heavy objects” must be established by “probative evidence, through expert testimony, connecting the injury to the alleged negligence.” Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). “Whether proper lifting equipment would have prevented the injury is not a question that can be answered by general experience.” Id. The affidavit of Azua’s treating physician, which Azua introduced, does not address the matter; and Azua introduced no other expert evidence.      We overrule Azua’s issue.  We affirm the judgment. TOM GRAY Chief Justice Before Chief Justice Gray,      Justice Vance, and      Justice Reyna Affirmed Opinion delivered and filed October 27, 2004 [CV06]