Arevalo v. State

• Decision Date: 18 June 1992
• Docket Number: No. A14-91-00592-CR,A14-91-00592-CR
• Citation: 835 S.W.2d 701
• Parties: Alvaro AREVALO, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 701

835 S.W.2d 701

Alvaro AREVALO, Appellant, v. The STATE of Texas, Appellee.

No. A14-91-00592-CR.

Court of Appeals of Texas Houston (14th Dist.).

June 18, 1992.

Moses M. Sanchez, Houston, for appellant.

Scott A Durfee, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

Alvaro Arevalo, appellant, was indicted for the offenses of delivery of cocaine, a controlled substance, weighing at least 400 grams; and possession of cocaine, a controlled substance, weighing at least 400 grams with intent to deliver. Appellant pled not guilty and the case went to a jury trial on the possession of cocaine with intent to deliver charge. The jury found him guilty. After a review of the presentence investigation report, the trial court assessed punishment at 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a fine of one dollar. He filed a motion for new trial which the trial court overruled. Appellant raises eight points of error complaining the evidence is insufficient to support his conviction, the State's jury argument was improper, the time limitation of his closing argument was too short, the denial of his Sixth Amendment right to present evidence, and the failure to define the term "knowingly." We affirm.

On August 13, 1990, Detective William M. Hastings (Hastings) of the Katy Police Department was working on a narcotics deal with a confidential informant. Hastings was on assignment to the Harris County Organized Crime Unit Narcotics Task Force as an undercover officer. The informant had set up a drug deal with Jairo Cano, a drug dealer. They met at a Stop-N-Go convenience store to discuss the terms of the deal. The informant introduced Hastings to Cano. Hastings was posing as a buyer from out of town who wanted to purchase two kilos of cocaine. They met for about 20 minutes and Cano referred to an unnamed partner numerous times. A deal was reached and Hastings was to pay $50,000 for the two kilos of cocaine. Cano gave Hastings a small sample, "about half a gram," of cocaine and "told him to check it, if [he] liked it, to give him a call back." Cano gave Hastings a phone number where he could be reached and left the scene. The phone number was to a job trailer at a construction site. Hastings field tested the sample and it was cocaine. He waited about 20 minutes and called Cano. The person who answered the phone told Hastings that Cano had gone to pick up his package and to call back in about 15 to 20 minutes. Hastings waited and called back. Cano answered and they agreed to meet at 3:30 p.m. at the Fiesta Food Mart on Bellaire and Highway 6. Hastings and the informant arrived first, parked, and waited. There were undercover surveillance vehicles set up in the parking lot, with a vehicle monitoring the "bust signal" parked about 75 feet away.

Cano arrived at 4:00 p.m. with appellant on the passenger side of his vehicle. Cano stepped out of his car and walked behind it to Hastings' vehicle. Hastings and the informant stepped out of their car to talk to Cano. Cano said he only had one kilo of cocaine with him. He wanted to do one deal that day and another deal the next day. If both of these deals went all right, then he had an endless supply of cocaine and they could do business on a regular basis. Cano told the officer to go over to his car and get in the front seat, and his friend would show Hastings the "stuff." The officer walked toward the car where appellant was still seated on the passenger side. As he approached the car, Hastings could see that appellant had a package on his lap. The passenger window was open and as he got closer to the car, appellant smiled and held the package up to Hastings. Hastings turned after seeing the package and walked back to Cano. They went around to the back of Hastings' car to count out $25,000 to pay for the one kilo. At that time, Hastings pressed the button on the bust signal and the surveillance officers moved in to make the arrest. Cano and appellant were both arrested. When appellant was pulled from the car by Officer Fullbright (Fullbright), the package of cocaine was found on the passenger side floorboard between appellant's feet.

In point of error one, appellant alleges the evidence is insufficient to sustain his conviction for possession of cocaine with intent to deliver. He contends the evidence does not establish that he was in knowing possession of the cocaine as required by the Penal Code. See TEX.PENAL CODE ANN. § 6.03(a), (b) (Vernon 1974).

In reviewing the sufficiency of the evidence, the Court must view "all the evidence in the light most favorable to the verdict" and determine whether a rational trier of fact could have found the evidence sufficient to establish beyond a reasonable doubt that appellant knew the package contained cocaine. Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990) (quoting Blankenship v. State, 780 S.W.2d 198, 206-07 (Tex.Crim.App.1988)). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard is the same whether we are reviewing the sufficiency of circumstantial or direct evidence. See Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). The trier of fact may reconcile conflicts in the testimony and accept or reject any or all of the evidence on either side. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976); Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974). Thus, the evidence is sufficient to sustain a conviction if the collective weight of all the incriminating circumstances is sufficient. Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

In this case, the officer testified appellant arrived at the location of the drug deal with Cano. According to Hastings, appellant sat in the car, with the window down, and watched as he, Cano, and the informant discussed the deal. When the officer approached the car, he could see that appellant had a package on his lap. As he got closer to the car, appellant smiled and held the package up to Hastings. After the bust signal was made appellant just sat there in the car.

Fullbright, the arresting officer, testified that appellant was sitting in the car with his hands in his lap. When the officer approached the car with his gun drawn and ordered appellant to raise his hands, appellant did not respond. The officer repeated the order several times but appellant did not move. Fullbright reached in the window and "pulled [appellant's] hands up a little bit. [He] went to slap [appellant's] hand away with [his] pistol, but it bust[ed] his lip a little bit." The officer then opened the car door, removed appellant from the car, and laid him on the ground. He conducted a pat down search of appellant and found no weapons or money. In the car, Fullbright seized "[a]n envelope containing approximately a kilo of cocaine" from "the floorboard between [appellant's] feet." As far as the officer could recall, the envelope was sealed and was in, or laying on, a Chief's Auto Supply bag.

Charles More (More) the forensic chemist/toxicologist for the Harris County Medical Examiner's Office testified about analyzing the contents of the envelope. After stating his credentials, More explained the type of tests run on the substance, and testified that it was cocaine. He stated it weighed 976.2 grams including adulterants and dilutants, and that it was 62 percent pure cocaine. On cross-examination, he discussed the chain of custody for the envelope and stated he only received this one package to test.

Appellant testified, through an interpreter, that he was 52 years of age and was from Colombia. He has a wife and four adult children in Colombia. He worked for 20 years in Colombia at the Banco Central Hipotecario. "After you're there 20 years, the bank gives you the right to enjoy retirement" and so he retired. Although he has acquired the right to a pension, he will not begin receiving the pension until he is 55 years old. He came to Houston on March 30, 1990. He got a job as a dishwasher at the Taqueria El Paso and was still employed there on the day he was arrested. He met Cano at the Taqueria where he frequently came to eat. He had known Cano approximately one month before his arrest. Appellant lived about eight blocks from the Fiesta Food Store and did not own a car. On the day of the offense, he left his apartment to do his grocery shopping for the week and was walking down the street. When he was about a block and a half from his apartment, Cano pulled over and asked where he was going. Appellant told him he was on his way to Fiesta and Cano said, "Get in." Cano took him to the Fiesta parking area away from the store and "immediately he got out of the car and he said, wait for me Alvaro, and when he said that, he left the car." Appellant testified that he waited "[b]ecause [Cano] asked me stay there. As he stepped out, he said, 'Wait for me a moment, Arevalo,' as he left. And I had no particular reason not to." He said he "stayed there because at no moment, at no instance, could [he] imagine the gravity of what was going on." Appellant stated that he "had no recognition of [Cano's] activity" and had he known that Cano was about to make a drug deal he "never would have gotten in his car." He testified that he sat there "some five to seven minutes" waiting "[a]nd then, immediately they [the police] all emerged, surrounding the car like bees." He stated that he "didn't see anything in the car" and "at no time did [he] gesture to [the officer] about anything that was there." Appellant said that he was pulled from the car and thrown on the ground. He had no conversation with any of the officers about cocaine or money. He has never been arrested before and "[n]ever in my life have I known this business, this kind of business, never." Appellant stated he...