Ovidio Hernandez Medrano, Jr. v. State

NUMBER 13-05-702-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG OVIDIO HERNANDEZ MEDRANO, JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 180th District Court of Harris County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Garza Appellant, Ovidio Hernandez Medrano, Jr., was convicted by a jury of unlawful possession of cocaine and was sentenced by the trial court to nine months' imprisonment. See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2005), § 481.115(a), (b) (Vernon 2003). Appellant challenges his conviction by two issues which assert that the trial court committed reversible error in overruling his two motions to strike a venireman for cause, and by two issues which challenge the sufficiency of the evidence. We affirm. I. Factual Background Police officers observed appellant driving a truck with a defective rear taillight while patrolling a neighborhood known for drug-use in Harris County. Before the officers could effect a traffic stop, appellant stopped his vehicle and exited. Shortly thereafter, a female passenger, appellant's girlfriend Liza Galvan, exited as well. Appellant initially was unable to offer an explanation for being in the area or for stopping where he did. The officer characterized appellant as nervous, fidgety, jittery, and evasive and noted that appellant spoke with a nervous stammer and avoided eye contact. The officer testified that he saw, in plain view, two glass pipes in a paper napkin on the bench seat of the vehicle, which he recognized immediately as crack pipes. (1) The pipes were in a location accessible to appellant and Galvan. At the time, Galvan indicated that the pipes belonged to appellant. Galvan later testified that the pipes were hers, and one of appellant's family members testified that appellant had never used drugs. A field test conducted on the pipes resulted in a presumptive positive for crack cocaine. The pipes were sent to the Harris County Medical Examiner's Office, where the results were confirmed. The officer observing appellant noted that he had burnt lips, burnt fingernails, raised taste buds, dilated pupils, and an elevated pulse. Based on these observations and his experience with drug-related offenses, the officer believed appellant had recently used crack cocaine. The officer swabbed appellant's hands pursuant to another field test, which also produced a presumptive positive for cocaine. Appellant was charged with possession of cocaine for one crack pipe, and Galvan was charged with possession of cocaine for the other crack pipe. Appellant was subsequently convicted by a jury of unlawful possession of cocaine and was sentenced by the trial court to nine months' imprisonment. This appeal ensued. II. First and Second Issues: Jury ChallengesIn his first and second issues, appellant contends the trial court erred in overruling his two motions to strike two veniremembers for cause. During the general voir dire of the panel, appellant's counsel asked the panel as a whole if any of them would "lean towards the police" at trial. The response was "No." Counsel then inquired of the two police officers on the panel the following: "[C]an ya'll ever see a situation where a police officer would lie?" Each officer answered "No." Appellant challenged the veniremen for cause based on a perceived bias toward police officers. The trial court denied the challenges for cause and denied appellant's request for two additional peremptory challenges. Appellant did not subsequently identify any seated jurors as objectionable. B. Relevant Law To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002) (citing Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997)). Although appellant demonstrated that he exhausted his peremptory challenges and that the trial court denied a request for additional strikes, appellant failed to demonstrate that an objectionable juror sat on the jury. (2) He has therefore failed to preserve this complaint. See Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996) (concluding that defendant failed to preserve error on issue of whether trial court erred in denying his challenge for cause against venireman where there was no evidence in the record defendant complained about any objectionable jurors seated on the jury). We overrule appellant's first and second issues. III. Third and Fourth Issues - Legal and Factual Sufficiency In his third and fourth issues on appeal, appellant contends the evidence is legally and factually insufficient to support his conviction. Specifically, appellant asserts that the evidence affirmatively linking him to the cocaine is legally and factually insufficient to support his conviction because he did not exercise actual care, control, and management over the cocaine. Instead, he asserts that the record shows that Galvan was in clear, unequivocal control over the pipes containing the cocaine residue. He further argues that his mere presence in the vehicle where the cocaine was found is insufficient to establish possession where the vehicle was also occupied by Galvan. A. Standard of Review When reviewing the legal sufficiency of the evidence, we 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). This standard is applicable in both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In a factual-sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Coleman v. State, 131 S.W.3d 303, 307 (Tex. App.-Corpus Christi-Edinburg 2004, pet. ref'd.). A clearly wrong and unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder's verdict even if there is probative evidence that exists that supports the verdict. Id. at 164. In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. B. Analysis To support a conviction for possession of cocaine, the State must prove two evidentiary requirements: first, the accused exercised care, custody, control or management over the substance; and second, that he had knowledge that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988)). When a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove additional independent facts and circumstances that affirmatively link the defendant to the contraband in such a way that it can be concluded that the defendant had knowledge of the contraband and exercised control over it. Poindexter, 153 S.W.3d at 406; Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Affirmative links may be proved with circumstantial evidence, but if the proof only amounts to "a strong suspicion or even a probability," it will not suffice. Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.-Corpus Christi 2002, pet. ref'd). Affirmative links are established when the evidence, direct or indirect, establishes "that the accused's connection with the drug was more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence that affirmatively links a defendant to contraband suffices for proof that the defendant possessed it knowingly and exercised care, control, and management over it. See Brown, 911 S.W.2d at 747; see also Jenkins, 76 S.W.3d at 712. Courts have identified a number of factors that may help to show an affirmative link to controlled substances. See, e.g., Poindexter, 153 S.W.3d at 406; Jenkins, 76 S.W.3d at 712-13; Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.-Corpus Christi 2002, no pet.); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The following is a non-exclusive list of factors that have been found to affirmatively link a defendant to contraband: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested;(8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. See Poindexter, 153 S.W.3d at 406; Jenkins, 76 S.W.3d at 712-13; Lassaint, 79 S.W.3d at 740; Gilbert, 874 S.W.2d at 298. It is not the number of factors present that is important, but, rather, the "logical force" that they create to prove that the defendant knowingly possessed the controlled substance. Jenkins, 76 S.W.3d at 713 (citations omitted). The defendant's actions toward the contraband or the police may be considered an affirmative link. Payne v. State, 480 S.W.2d 732, 734 (Tex. Crim. App. 1972); Granados v. State, 843 S.W.2d 736, 740 (Tex. App.-Corpus Christi 1992, no pet.). In the light most favorable to the verdict, the record shows the following affirmative links between appellant and the cocaine: the contraband was found in close proximity to appellant; it was in plain view; it was found in appellant's vehicle, while he was driving it; and appellant possessed other drug paraphernalia, specifically, a disposable cigarette lighter lying next to the crack pipes. See White v. State, 155 S.W.3d 927, 929 (Tex. App.-Amarillo 2005, pet. ref'd) (setting out that a cigarette lighter was among the drug paraphernalia used to link possession of drugs to the defendant). In addition, appellant appeared to the officer to be under the influence of drugs and exhibited physical signs indicative of cocaine use, including burnt lips, burnt fingertips, raised taste buds, dilated pupils, and an elevated pulse. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.-Houston [1st Dist. 1994, pet. ref'd) (concluding that the physical condition of defendant indicating recent drug consumption is an affirmative link showing control over contraband); Alvarez v. State, 857 S.W.2d 143, 148 (Tex. App.-Corpus Christi 1993, pet. ref'd) (providing that pupil dilation indicated drug use, affirmatively linking appellant to possession of cocaine). Appellant's hands were swabbed for a field test, which resulted in a presumptive positive for cocaine. Appellant was also found with the contraband in an area known for the sale of crack cocaine and initially could offer no explanation for being in the area. Appellant told police that both pipes belonged to his passenger; however, she told police the pipes belonged to appellant. See Robinson v. State, 174 S.W.3d 320, 327 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (determining that conflicting statements from vehicle occupants may establish affirmative links if the statements or inferences made therefrom establish a connection to appellant's knowledge of the contraband's presence). Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that appellant possessed cocaine. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for possession. Appellant's third issue is overruled. Appellant also contends that the evidence is factually insufficient to establish an affirmative link between him and the cocaine. In support of his argument, appellant asserts that Galvan clearly had control over the crack pipes. In light of the links discussed above, we conclude that it was reasonable for the jury to find that appellant knew of the cocaine in the car and exercised control, management, or care over it. We conclude that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and that proof of guilt is not so weak as to undermine confidence in the jury's determination. Appellant's fourth issue is overruled. The judgment of the trial court is affirmed. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 17th day of August, 2006. 1. We note that appellant contends Galvan was holding the napkin containing the pipes, as opposed to the napkin being on the seat. 2. Appellant's brief states that the record shows that "two veniremen unacceptable to the defense were seated on the jury." However, after careful review of the record, we are unable to ascertain which two veniremen appellant is making reference to. While the record reflects that appellant successfully struck the two officers, the record does not reflect that appellant complained of any jurors seated on the jury.