Tobon, Jorge Humberto v. State

Affirmed and Memorandum Opinion filed December 23, 2003 Affirmed and Memorandum Opinion filed December 23, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-00-00209-CR ____________ JORGE HUMBERTO TOBON, Appellant V. THE STATE OF TEXAS, Appellee _______________________________________________________ On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 796,891 _______________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Jorge Humberto Tobon was found guilty of the offense of possession of more than 400 grams of cocaine with the intent to deliver. The jury sentenced him to twenty years’ confinement and ordered him to pay a $5,000 fine. In four points of error, appellant claims (1) accomplice testimony was not sufficiently corroborated and therefore the trial court erred in admitting it; (2) without the accomplice testimony, the evidence is legally insufficient to support the jury’s verdict; and (3) the cumulative evidence is factually insufficient to support the verdict. We affirm. I. Factual Background On January 12, 1998, appellant rented an acetylene blowtorch from Aztec Rental, Inc. Three days later, he was seen entering a house that was under surveillance by the Houston Police Department (“HPD”). The police were monitoring the house because they had received a tip that a large amount of cocaine was being stored at the residence. Appellant’s brother, Oscar, owned the home. Police officers followed appellant from the house, and saw him returning equipment to Aztec. On January 17, police followed Oscar and his son, Edwin, as they left Oscar’s house. They met another man at a gas station, and saw Oscar engaging in a heated argument with the man. Oscar and Edwin later went to a moving truck facility where Edwin rented a U-Haul truck. Edwin drove the truck from the facility, and Oscar followed him in his car. The men drove to the restaurant where appellant worked. They parked the U-Haul truck near the restaurant and left together in the car. A short time later, Oscar and Edwin returned to appellant’s work place and were followed by seven to eight males in a pick-up truck. Oscar went into the restaurant and came out with appellant. Oscar then got into the car with Edwin and drove away. Appellant got into the U-Haul truck with two men from the pick-up truck. The men in the U-Haul truck and the remaining men in the pick-up truck drove to Oscar’s house. Appellant let the men into Oscar’s garage, and the U-Haul truck was backed into the garage. HPD officers saw appellant and the men loading large cylinders into the back of the U-Haul truck. After the men left Oscar’s house, they drove to a nearby grocery store where they met Oscar and Edwin. The U-Haul truck and the pick-up truck followed Oscar and Edwin. The undercover officers followed the U-Haul truck and then called a patrol unit to initiate a traffic stop on it after they noticed that none of the vehicle’s occupants were wearing seatbelts. A patrol officer responded to the call, but stopped the U-Haul truck for failure to signal a lane change. The officer asked for permission to search the U-Haul truck, and after receiving consent in English and Spanish, opened the back of the vehicle and found two large cylinders. The cylinders were new air compressor tanks, but each had a visible square pattern where it had been cut open and re-bonded. One officer poked a bonded area on one of the cylinders with a screwdriver, and withdrew the screwdriver to find a powdery substance that appeared to be cocaine. The substance tested positive as cocaine; in fact, the cylinders contained over $15 million worth of cocaine. Several months later, Gabriel Zavala, in exchange for leniency in a federal drug case, told police about his involvement in the instant case and gave police additional information about appellant’s participation in the scheme. According to Zavala, he was a friend of Oscar, and he had met appellant through Oscar. Oscar had asked Zavala to assist him with a narcotics transaction. Zavala testified that he and Oscar picked up the cocaine and that Zavala had transported it to Zavala’s home. Zavala later moved the cocaine to Oscar’s house. Zavala testified that some time later he met up with appellant and drove to Oscar’s house. There, the two cut open one of the cylinders with a blowtorch and stuffed the cylinder with cocaine, blankets, and pillows. Zavala stated that while working on the cylinder, the two opened a couple of the packages of cocaine and ingested some of it. They then resealed the cylinder. Zavala stated that he did not do anything with the second cylinder. Zavala did not assist with transporting the cocaine on the day the police seized the narcotics. He testified that he did meet Oscar at a gas station shortly after he had helped conceal the cocaine, and that the two had gotten into an argument because Zavala wanted to wait to move the narcotics. This portion of Zavala’s testimony was supported by police witnesses. The police officers who had followed Oscar on the day of the seizure confirmed that Zavala was the person Oscar had argued with at the gas station that day. Moreover, the license plate number the police had taken from the other car at the gas station was traced to Zavala. Zavala’s testimony proved helpful to the police. Before Zavala confessed his involvement in the transaction, the HPD had not connected appellant’s return of equipment to Aztec to the crime. The police then went to the rental company and discovered that, on the day appellant was followed to Aztec, he had returned a blowtorch. Appellant testified he was unaware of the narcotics transaction. Appellant said that he and his brother were not very close. He stated he had rented a blowtorch for Oscar so that he could cut the top off a car. According to appellant, Oscar had asked appellant to rent the blowtorch because Oscar did not have a valid driver’s license to do so himself. Appellant said he took the equipment to his apartment, Oscar picked it up from the apartment, and appellant never saw the equipment again. Appellant testified that on the day of the narcotics seizure, Oscar showed up at appellant’s work place and asked him to help move some things. Oscar gave appellant his garage door opener and told appellant to direct the other men to Oscar’s house and to assist them with loading some cylinders in the garage. Appellant was told to meet Oscar at a nearby grocery store after the items were loaded. Appellant contended he had no idea the cylinders contained cocaine. II. The Accomplice Testimony In his first and second points of error, appellant claims the evidence was insufficient to corroborate the accomplice testimony of Zavala. We consider that assertion as a challenge to the sufficiency of the evidence to sustain the conviction. See Cook v. State, 858 S.W.2d 467, 469–70 (Tex. Crim. App. 1993). In fact, appellant specifically contends that “[t]he evidence without [Zavala’s] testimony was clearly insufficient to support a verdict of guilt.”[1] Article 38.14 of the Texas Code of Criminal Procedure provides that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). This rule is commonly referred to as the “accomplice witness rule.” The accomplice witness rule is not a product of either common law or federal constitutional law, but a creation of the Texas Legislature. See Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The purpose of the rule is to ensure that the jury does not consider accomplice witness evidence unless the jury finds both that the accomplice witness is telling the truth and that other evidence corroborates the accomplice witness’s testimony. See Tran v. State, 870 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). “The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person.” Blake, 971 S.W.2d at 454 (citations omitted). The accomplice’s motives in testifying against the accused may well include malice or an attempt to curry favor with the government in the form of a lesser punishment, or perhaps, no punishment. The Texas Legislature has determined that because the testimony of an accomplice is inherently untrustworthy and should be viewed with caution, uncorroborated testimony of an accomplice, standing alone, is not enough to support a criminal conviction.[2] To determine whether an accomplice’s testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect the defendant to the offense. See Knox v. State, 934 S.W.2d 678, 686 (Tex. Crim. App. 1996). In applying the test for sufficiency, we must consider each case on its own facts and circumstances, and we must look to all facts to determine whether the accomplice testimony is corroborated. See Munoz v. State, 853 S.W.2d 558, 559–60 (Tex. Crim. App. 1993). The corroborative evidence may be circumstantial or direct, and it need not establish the defendant’s guilt of the charged offense; rather, it is sufficient if it “tends” to connect the defendant to the offense. Id. at 559; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses that tends to connect the accused with the commission of the offense supplies the test. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983). We agree with appellant that Zavala was an accomplice witness because he actively participated in the narcotics transaction.[3] See Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (finding that an accomplice is one who participated in the offense); Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999) (stating that, to be an accomplice, one must have taken an affirmative act in furtherance of the commission of the offense). Therefore, we must examine the non-accomplice testimony to determine whether the State presented sufficient evidence that tended to connect appellant with the commission of the offense. Appellant admitted renting an acetylene blowtorch. He testified that he left his work place with Oscar on January 17, 1998, and got into a U-Haul truck with two individuals he did not know. He stated that he directed them to Oscar’s house and let them into the garage so that the cylinders could be loaded into the U-Haul. Although he contends he did not know what was in the cylinders, he admits he transported them to a nearby grocery store where he met up with Oscar. He also admits to being an occupant of the U-Haul truck that was following Oscar when it was pulled over by the HPD. The State introduced the testimony of two HPD officers, Hans Meisel and Armando Gonzalez, to show that appellant returned the blowtorch to Aztec. Officers Meisel and Gonzalez testified that they followed appellant from Oscar’s house on January 15, 2003, to Aztec. Officer Gonzalez stated that he then followed appellant into the store and overheard him discussing a rental return with a desk clerk. Officer Gonzalez said he left at that point, and did not remain at the store to observe the rest of the transaction, because the surveillance team did not see any connection between the rental return and the suspected drug trafficking. Although appellant testified that he never saw the blowtorch again after Oscar retrieved it from his apartment and appellant denied returning the blowtorch to Aztec, the jury, as finder of fact, is the exclusive judge of the credibility of the witnesses and the weight to be afforded their testimony. See Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). Thus, in the absence of Zavala’s testimony, appellant was connected with (1) renting and returning the equipment used to conceal the cocaine in the metal cylinders; (2) directing others to Oscar’s house and letting them into the garage in order to load the cylinders into the U-Haul truck; (3) loading the cylinders into the U-Haul truck; and (4) transporting the cylinders in the U-Haul truck. This evidence tends to connect appellant with the offense such that it sufficiently corroborates Zavala’s testimony. Because we find Zavala’s testimony was sufficiently corroborated, we find no merit in appellant’s challenge to the legal sufficiency of the evidence to support the conviction. Accordingly, we overrule appellant’s first and second points of error. III. Factual Sufficiency In his third and forth points of error, appellant challenges the factual sufficiency of the evidence. When evaluating such a challenge, we view all the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000). This concept embraces both “formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.” Id. at 11. Under this formulation, we essentially compare the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must consider and address the appellant’s main argument for a finding of insufficiency. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id. We find the evidence factually insufficient only when necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407. In support of his factual-sufficiency challenge, appellant again asserts a lack of affirmative links between appellant and the cocaine. Appellant argues that his presence in the U-Haul truck and his rental of the blowtorch are acts insufficient to support his conviction. Appellant contends that, absent the testimony of Zavala, there is no evidence (1) he assisted filling the cylinders with cocaine; (2) he knew what the blowtorch was to be used for; or (3) he was aware of the contents of the cylinders. Although mere presence in the vicinity of contraband is insufficient to prove that a person exercised control over the contraband or was a party to the offense, it is a circumstance tending to prove guilt, which, when combined with other facts, may suffice to show guilt. See McGoldrick, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Alvarez v. State, 813 S.W.2d 222, 224 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (recognizing link between narcotics hidden in tanker and defendant riding in separate car by defendant’s pattern of counter-surveillance). As set forth in the foregoing accomplice testimony analysis, several factors affirmatively linked appellant to the cocaine found in the cylinders in the U-Haul truck. Although appellant’s testimony differed from that of the HPD officers, it was the jury’s duty to determine the credibility of each witness’s testimony and to decide the weight to be given the evidence. See Garza v. State, 633 S.W.2d 508, 514 (Tex. Crim. App. 1981); see also Carr v. State, 694 S.W.2d 123, 128 (Tex. App.—Houston [14th Dist.] 1985, pet. ref’d). Considering the evidence both for and against a finding of guilt, we cannot conclude the jury’s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 6–7. Accordingly, we overrule appellant’s third and fourth points of error. Having overruled all of appellant’s points of error, we affirm the trial court’s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed December 23, 2003. Panel consists of Justices Hudson, Fowler, and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Appellant contends that without Zavala’s testimony, there is no evidence to show he intentionally or knowingly possessed cocaine. He does not challenge the legal sufficiency of the evidence to support the conviction if Zavala’s testimony were properly admitted. [2] The corroboration requirement applies only when the accomplice witness is called by the State. Blake, 971 S.W.2d at 454. [3] The trial court did not make a finding that Zavala was an accomplice witness as a matter of law. It submitted that issue as a question of fact for resolution by the jury. Appellant now argues that Zavala was an accomplice witness as a matter of law and that the trial court erred by submitting the issue to the jury. However, appellant did not object to the jury charge, and thus he has waived any error.