Jasso, Martin Alfredo v. State

Affirmed and Opinion filed March 25, 2004 Affirmed and Opinion filed March 25, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00184-CR ____________ MARTIN ALFREDO JASSO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 896,067 M E M O R A N D U M   O P I N I O N Appellant, Martin Alfredo Jasso, appeals from his conviction for possession of a controlled substance with intent to deliver. A jury found appellant guilty, and the trial court assessed punishment at fifteen years= confinement and a $1,000 fine. On appeal, appellant challenges the legal and factual sufficiency of the evidence. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4. We affirm. The Evidence Police Officer Oscar Garcia testified as follows: he was working as an undercover narcotics officer when he met with appellant and a paid police informant at a strip mall. He negotiated with appellant for the sale of four kilograms of cocaine, and they agreed to a price of $17,500 per kilogram. Officer Garcia showed appellant $50,000 contained in a small ice chest; because appellant did not have the drugs with him, appellant tried to convince the officer to go to another location to complete the transaction. Officer Garcia initially refused but later agreed and followed appellant to a mobile home. He stayed outside while appellant and the informant entered the trailer. The informant, Eloy Garcia, corroborated Officer Garcia=s testimony regarding the negotiations. When they entered the trailer, one of the men inside showed him the cocaine. Eloy then left to get the money; once outside, he gave a signal and police officers moved in to make arrests. Officer Garcia additionally testified that when the raid team approached the trailer, a man opened the back door and threw a small canister under the trailer before jumping out with a plastic bag in his hand. This testimony was corroborated by Officer Joseph Thompson, who recovered the bag and the canister. Both contained a powder substance. A Houston Police Department Chemist testified that he analyzed the powder substance and determined that it was cocaine. Appellant testified on his own behalf, contending that he thought that the transaction involved the purchase of a used truck, that the subject of drugs never came up, and that when Eloy (whom he knew by a different name) and Officer Garcia spoke English at times, he could not understand what they were saying. Appellant=s wife testified that she understood Eloy to be in the business of selling old cars and, on the day in question, simply wanted appellant to accompany him to retrieve a truck. Legal Sufficiency In his first issue, appellant attacks the legal sufficiency of the evidence to support the conviction. We utilize the normal standards in reviewing this legal sufficiency challenge. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Appellant was convicted of possession of a controlled substance. To prove possession, the State must establish that the defendant knowingly exercised actual care, custody, control, or management over the contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.1995); Villareal v. State, 116 S.W.3d 74, 79 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Appellant specifically argues that there was no evidence that he exercised care, control, or management over the controlled substance. He asserts that, at most, the evidence established that he helped arrange the sale of cocaine that was possessed by others. We begin our analysis by noting that possession need not be exclusive, and evidence showing joint possession with another is sufficient. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Avila v. State, 15 S.W.3d 568, 573 (Tex. App.CHouston [14th Dist.] 2000, no pet.). However, in cases where possession was not exclusive, the State must produce evidence of additional facts and circumstances affirmatively linking the accused to the contraband. See Cude, 716 S.W.2d at 47; Avila, 15 S.W.3d at 573. Mere presence in the vicinity of the contraband, or even mere knowledge that an offense is taking place, will not establish that the accused exercised the requisite care, control, and management or that he had joint possession of the contraband. See Martinez v. State, 880 S.W.2d 72, 77 (Tex. App.CTexarkana 1994, no pet.). In the present case, the evidence demonstrated that appellant represented his ability to deliver drugs, negotiated the terms of sale, and then arranged for the consummation of the sale by taking the informant inside a trailer where the drugs were located. This evidence was sufficient to affirmatively link appellant to the cocaine and to establish his care, control, or management over the drugs. See id. at 77-78; cf. Diaz v. State, 902 S.W.2d 149, 152 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (holding that evidence showing defendant brokered purchase of cocaine was sufficient to sustain conviction for illegal investment of funds). Accordingly, we find that the evidence was legally sufficient to support the verdict. Appellant=s first issue is overruled. Factual Sufficiency In his second issue, appellant contends that the evidence was factually insufficient to support the conviction. We utilize the normal standards of review of a factual sufficiency challenge. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Specifically, appellant argues that the evidence was deficient because the State=s case rested primarily on the testimony of a paid informant, which was in contradiction to appellant=s own more credible testimony. It is generally the province of the jury to assign credibility and weight to testimony, particularly when the testimony of two witnesses conflicts. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Moreover, appellant=s assertion that the State=s case rested largely on the informant=s testimony is not supported by the record. The prosecution relied heavily on Officer Garcia=s testimony, which was substantially corroborated by the informant=s testimony and the testimony of another officer involved in the operation. Accordingly, we find that the evidence was factually sufficient to support the verdict. Appellant=s second issue is overruled. The trial court=s judgment is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed March 25, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).