Mares v. State

• Decision Date: 26 September 1990
• Docket Number: No. 04-89-00242-CR,04-89-00242-CR
• Court: Texas Court of Appeals
• Parties: Gilbert MARES, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 121

801 S.W.2d 121

Gilbert MARES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00242-CR.

Court of Appeals of Texas San Antonio.

Sept. 26, 1990.

Rehearing Denied Oct. 30, 1990.

James E. Shugart, San Antonio, for appellant.

Fred G. Rodriguez, Jane Davis, Robert McClure, Laurie A. Booras, Crim. Dist. Attys., San Antonio, for appellee.

Before PEEPLES, CARR and ONION, JJ.

OPINION

ONION, Justice. ¹

This is an appeal from a conviction for possession of a controlled substance, to-wit: heroin in an amount of less than 28 grams. Following the jury's verdict of guilty the trial court assessed appellant's punishment at forty (40) years' confinement in the Texas Department of Corrections. ²

Appellant advances five points of error. In two points he challenges the sufficiency of the evidence to sustain his conviction. In addition, appellant contends the trial court erred in failing to grant his motion for mistrial when the prosecutor violated a granted motion in limine, erred in giving an "Allen" charge to the jury during their deliberations, and erred in denying a motion for new trial based on jury misconduct. We reach only the first two points of error in our disposition of this cause. We will reverse the judgment of conviction and order an acquittal.

Appellant was one of nine persons who were arrested when a team of Bexar County deputy sheriffs executed a search warrant at an apartment in a public housing development in the city of San Antonio. Three officers entered the front door and three officers entered the back door at the time of the raid. Appellant, a visitor at the premises, was with others watching Monday night football on the television when the officers entered the apartment at 1112 San Fernando Street the in Alazan-Apache Courts. It was later learned that the apartment was leased to Delmira De La Cruz who was not present at the time of the raid. Appellant was tried jointly with Ciro and Elizabeth Sifuentes. Apparently a motion for severance on behalf of Mario Barajas was granted.

Bexar County deputy sheriff Joe Delgado, a narcotics investigator, testified that he was an undercover officer. He related that this accounted for his beard and general appearance, which he admitted gave him the look of a person of disrepute. He acknowledged that he had acquired the street name of "Animal." Delgado stated that he had received information from a reliable informant that the apartment in question was "a safe house" where street vendors picked up their narcotics to sell, but from which house no direct dealing was done. Delgado revealed that he led the team of deputy sheriffs in executing the search warrant within the city limits.

Delgado stated that as the officers exited their vehicles near the apartment, people in the area began yelling "Los Narcos (police), Mario"; that he heard a flushing sound from the open upstairs bathroom window of the apartment; that he had obtained a master key from the Housing Authority and entered the back door with two other deputies, while three other deputies were banging on the front door creating a diversion; that the front door was later knocked down.

Delgado's appearance at the raid was the same as at trial, except that he was wearing a raid jacket with "Police" emblazoned upon the front and back of the jacket. He had his .45 caliber handgun drawn. Delgado related that as he entered the ground floor he initially encountered Rudy Barajas and pushed him out of the way, and got hit in the face by Barajas; that appellant Mares "was also in the way, and he took a couple of swings at me, made an attempt to try to trip me or kick at me when I was going upstairs.... After I pushed him out of the way, like I said, he kicked at me, trying to keep me from getting upstairs." When asked if appellant landed any punches, Delgado replied: "The only thing, just ... I got kicked on the side of the leg when he was pushed away from me."

The record shows Delgado was 6'1"' tall and weighed over 200 pounds, and was armed. Delgado described appellant as not being "very tall."

Delgado told the prosecutor it had taken him about eighteen (18) seconds from the time he left his vehicle until he reached the upstairs of the apartment; that he took six seconds to reach the back door and twelve (12) seconds to get up the stairs.

When Delgado reached the upstairs area he encountered Ciro Sifuentes outside the bathroom door, and observed Mario Barajos with his hand on the toilet, having just thrown an object into the toilet bowl. Elizabeth Sifuentes was standing next to the toilet. Delgado retrieved the two bags from the toilet containing nine balloons of alleged heroin. A used syringe was also found in the bathroom. Delgado testified he heard Ciro ask Elizabeth Sifuentes to claim the "soda" (cocaine) and the "chita" (heroin), and he observed that she nodded in agreement. No cocaine was found though Delgado saw a white powdery substance in the toilet being flushed.

In a bedroom Delgado found balloons, syringes and in a closet an Ohio Triple Beam Scale which he related was commonly used in narcotic trafficking. In addition, Delgado found $150.00 in cash on the floor upstairs. Papers were found showing that the apartment was that of Delmira De La Cruz. The bedroom was determined to be that of Jose De La Cruz, her son.

Delgado, the only State's witness as to the occurrences at the scene, testified that six men were found in the living room downstairs. They were Rudy Barajas, the appellant Mares, Jose De La Cruz, Robert Fernandez, Robert Ledesma, and Daniel Dominguez. Delgado testified the room had a television set and couch and was a little larger than the jury box; that it was crowded with the six men in it. Deputy Delgado stated "most" of the men were "spaced out" or "mellow" meaning "taking it easy going" or "really didn't care," apparently from the use of narcotics. Upon interrogation by the prosecutor, Delgado exempted Rudy Barajas and the appellant from the description because they seemed to care. Delgado observed beer cans and quart beer bottles in the room and admitted beer could have caused the condition described. No contraband or paraphernalia or a significant amount of money was found on any of the men. No needle or track marks were found on the appellant. No narcotics or paraphernalia were found in the downstairs area. A gun was discovered under the stairwell, but its ownership was not determined. Delgado related that, while the raid was still in progress, several people came to the back door of the apartment asking for "Mario" or "Cujo" (street name for Jose De La Cruz) and indicating that they wanted to "score."

On cross-examination Delgado was asked about his offense report which listed only three unnamed Latin males as being downstairs. The record then reflects:

Q: Do you know which one of them it was that kicked you?

A: To my recollection it was Mr. Mares.

Q: When you say "to my recollection," is that your best guess or ...

A: No, sir. He was the closest one to me at the time.

Q: Therefore, you guess it was him that kicked you?

A: Like I said, he was the only one there.

The chain of custody of the contraband was established. Jeff Todd, a chemist, testified the substance submitted to him was 740 milligrams of heroin, less than one gram of the controlled substance; that 28 grams were approximately an ounce.

Rudy Barajas, whose indictment had been dismissed the day before by the State, testified for the defense. He related that he and his brother, Mario, had been invited by Jose De La Cruz to watch a football game on television on the date in question; that he arrived at the apartment about 8:00 p.m. and about 2 hours later, while they were watching television in the small living room he heard banging noises at the door; that people outside the door began yelling in Spanish; "We have guns. We're going to kill you. Open up the door." Everyone inside got up. Barajas stated he was scared. He revealed that Ciro and Elizabeth Sifuentes then went upstairs and that Dominguez and Ledesma followed; that De La Cruz who had come downstairs, went back up the stairs; that the front door was knocked down and men came into the room; that the lights were not on and there was much confusion. He did not know at first the men were police officers. Rudy Barajas related the entering men began to hit "us," and a large man whom he identified as Delgado knocked him down, then pushed the appellant down before proceeding up the stairs. He did not see the appellant kick or take any action at all. He claimed that he, his brother and the appellant were downstairs at all times; that he never saw any drug use at all.

Jose De La Cruz testified the apartment was his mother's home, and that he lived there at the time in question. He related that on September 12, 1988, he had invited several of his long time friends from school days to watch Monday night football on television; that while his friends watched television he left the apartment alone and purchased a small amount of heroin on Colima Street; that upon his return he took two "fixes," and was alone in his upstairs bedroom cutting the heroin and placing it in balloons when he heard the yelling and the banging at the door. De La Cruz immediately flushed his heroin down the commode and went down the stairs, but went back up before the officers came in. He related that Ciro and Elizabeth Sifuentes, Dominguez and Ledesma all came up to his bedroom after the banging and yelling at the door commenced.

De La Cruz stated they were all arrested with guns being pointed at their heads by officers in plain clothes. He acknowledged that the heroin syringes, balloons and the scale were all his. De La Cruz then told the jury he had been released the next day, and had never been indicted.

The appellant did not testify.

The court in its charge defined "possession" as meaning "the actual care, custody, control or management of the controlled...