Acosta v. State

• Decision Date: 07 May 2014
• Docket Number: No. PD–1211–13.,PD–1211–13.
• Citation: 429 S.W.3d 621
• Parties: Victor Manuel ACOSTA, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

429 S.W.3d 621

Victor Manuel ACOSTA, Appellant

v.The STATE of Texas.

No. PD–1211–13.

Court of Criminal Appeals of Texas.

May 7, 2014.

Matthew Mateo Dekoatz, Attorney at Law, El Paso, TX, for Appellant.

Michael E. Fouts, District Attorney, Haskell, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

COCHRAN, J., delivered the opinion of the unanimous Court.

Appellant, convicted of money laundering after officers found half a million dollars in cash hidden inside the speaker box of his tractor-trailer, argues that the evidence was legally insufficient to prove that the money represented proceeds from the delivery of a controlled substance.¹ The court of appeals—relying in part on a drug-dog alert to the cash—rejected that argument.² After reviewing all of the evidence, we agree that the cumulative force of the circumstantial evidence is sufficient to prove, beyond a reasonable doubt, that the cash was the proceeds of the sale of a controlled substance.

I.

On July 9, 2010, at 10:00 p.m., Trooper Brody Moore stopped a Freightliner tractor-trailer truck with a defective light in Haskell County. Appellant was driving the truck, and a passenger was in the sleeper. Appellant said that the passenger's name was “Gus,” but he could not recall his last name. Appellant said that Gus wanted to be a truck driver, so he was riding with appellant cross-country. But Gus (whose full name was later determined to be Gustavo Dominguez) had no driver's license. Trooper Moore noted that there were five cell phones in the truck. Based on his training and experience in drug and drug-money interdiction, the trooper recognized a pattern similar to that in other money seizures: a passenger with no driver's license was traveling with the truck driver.

Trooper Moore also pointed out that five cell phones between one driver and an unemployed passenger was “just not normal.” He found that the truck's logbook reflected that the truck originated from El Paso and that appellant left Kankakee, Illinois,³ at 2:00 p.m. on July 8th. Truckers are required to update their logbooks when there is a “duty status change,” such as when they stop for fuel or rest. The last entry in the logbook was at 4:00 a.m. in Missouri. Trooper Moore observed that 4:00 a.m. to 10:00 p.m. was longer than a trucker should drive in one sitting.⁴ He explained that drivers often do that when they want to avoid detection. Trooper Moore testified that he had experience with drug loads originating in El Paso. The drugs go out from there; the money comes back in. “Drugs go north; money comes south.” ⁵

Trooper Moore asked appellant if he had anything illegal in the truck. Then he asked if he had any guns, marijuana, cocaine, methamphetamine, or heroin. Finally, he asked, “Do you have any large sums of cash?” Appellant responded “no” to all of the questions, but he broke eye contact when responding to the last one. When Trooper Moore asked for consent to search the truck, appellant granted it. Deputy Winston Stephens arrived to assist in the search.

The two officers hollered when they found what turned out to be $502,020 in currency in a cavity behind the speakers of the truck. The officers then approached appellant and his passenger—both of whom had been cooperative throughout the stop—with guns drawn to arrest them for money laundering. DPS Sergeant Kyle Taylor, a K–9 handler, placed the vacuum-sealed bundles of currency in two new duffel bags and then randomly placed those bags among four other bags that had not been around narcotics. Sgt. Taylor's yellow labrador retriever, “Woods,” was certified to alert on marijuana, heroin, cocaine, and methamphetamine. Woods alerted on the two bags containing currency.

Both men were indicted for money laundering. Dominguez was found guilty before appellant's trial and sentenced to ten years' imprisonment.⁶ Appellant's defense at trial was that he—unlike Dominguez—was a “blind mule” who never knew that the money (which appellant conceded in final argument was probably drug proceeds) was there.⁷ In rebuttal, Haskell County Sheriff David Halliburton testified that, while he was serving as bailiff in an earlier proceeding, he saw appellant and Dominguez have what appeared to be an amicable conversation. The State used this evidence to argue that appellant was not a blind mule because, if he had been, he would have been angry at Dominguez. The jury found appellant guilty of money laundering and assessed his punishment at confinement for eight years.

On direct appeal, appellant argued that the evidence was insufficient to show that the currency constituted proceeds from the delivery of a controlled substance. The court of appeals disagreed and cited the amount of money, its packaging, Woods's alert, and the testimony that appellant and Dominguez's behavior and actions were consistent with that of drug-and-money couriers. ⁸ Appellant now argues that (1) the court of appeals erred in relying on the dog alert as evidence that the money was proceeds of delivery of a controlled substance, and (2) the evidence is otherwise insufficient to prove such a nexus. We granted review to clarify that such an alert is probative evidence of a nexus and to emphasize that it is the “totality of facts,”—coupled with common sense inferences that can be made from those facts—that may support a finding that seized money is the “proceeds of criminal activity.”

II.

Under Brooks v. State,⁹ we review the sufficiency of the evidence establishing the elements of a criminal offense under the single sufficiency standard set out in Jackson v. Virginia.¹⁰ Under that standard, we view the evidence in the light most favorable to the verdict and determinewhether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.¹¹

A person commits money laundering if he knowingly transports the proceeds (cash) of criminal activity (delivery of drugs). ¹² Frequently, there is no direct evidence that the cash seized constitutes such proceeds, but a criminal conviction may be based on circumstantial evidence.¹³ “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” ¹⁴ In such cases, it is not necessary that every fact and circumstance “point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.” ¹⁵ Furthermore, the trier of fact may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence.¹⁶

The narrow question before this Court, then, is whether the conclusion that the half a million dollars of cash in appellant's truck was the proceeds of drug trafficking is warranted by the cumulative force of all the circumstantial evidence. Both forfeiture and money laundering cases are instructive as to what kind of evidence is relevant to show a nexus between money and drug dealing. Such evidence includes the following: a denial of knowledge of the money,¹⁷ a narcotics-dog alert on the money,¹⁸ the amount of the money,¹⁹ the packaging of the money,²⁰ the secret storage of the money,²¹ the presence of illegal drugs,²² and the presence of records of drug transactions.²³ Somewhat more controversially, courts have relied on travel on a known drug route ²⁴ and courierprofile evidence.²⁵ The bottom line: Concealed movement of money is an integral part of the business of drug trafficking. ²⁶ Sufficient evidence of a nexus may not be found unless the sum total of incriminating facts would allow a reasonable trier of fact to find, beyond a reasonable doubt, that the property (cash) was exchanged for drugs.

III.

The court of appeals held that the evidence was sufficient to support a finding that the half a million dollars of cash was proceeds from the delivery of drugs based on:

• the large amount of cash—which would purchase a first-degree felony amount for drugs such as marihuana, cocaine, methamphetamine, or heroin;

• the currency's being in vacuum-packed bundles designed to avoid detection by a drug dog;

• the drug dog's alert to narcotics on the two vacuum-packed bags;

• courier profile evidence, including Trooper Moore's testimony that a significant amount of drugs originate in Mexico, that he had made three significant seizures of drugs in loads coming from El Paso, and that he had seized money in trucks headed to El Paso; and

• the amicable conversation between appellant and Dominguez seen by Sheriff Halliburton while he was serving as bailiff.²⁷

Appellant takes issue with the court of appeals's reliance on the positive canine alert to the money. He cites Winfrey v. State, a case in which we hinted at the lack of scientific foundation of human-scent discrimination lineups in which dogs differentiate among human scents in a “scent lineup.” ²⁸ Noting that dog “scent lineups” are different from tracking and narcotics detection, we held that “scent lineups,” when used alone or as primary evidence, are legally insufficient to support a conviction.²⁹ Though we have not addressed the issue head on, there is some authority that such dog “scent lineups” are not reliable and should be excluded.³⁰

Appellant's reliance on Winfrey is, however, misplaced. A drug-dog alert to the scent of narcotics on money is widely accepted in Texas as circumstantial evidence of a nexus between the money and drugs.³¹It is also accepted by other state ³² and federal courts. ³³

In this case, Sgt. Taylor testified that his yellow lab Woods has passed all his certifications and has been trained to alert on marijuana, heroin, cocaine, and methamphetamine. Sgt. Taylor placed bundles of the currency in two new duffel-type bags, and Sergeant Jody Tullos provided four bags that had not been around narcotics. Woods alerted on the two bags containing...