Ortiz v. State

• Decision Date: 30 August 1996
• Docket Number: No. 12-95-00261-CR,12-95-00261-CR
• Citation: 930 S.W.2d 849
• Parties: Henry Julio ORTIZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 849

930 S.W.2d 849

Henry Julio ORTIZ, Appellant, v. The STATE of Texas, Appellee.

No. 12-95-00261-CR.

Court of Appeals of Texas Tyler.

Aug. 30, 1996.

Gregg B. Price, Douglas Froneberger, Sulphur Springs, for appellant.

Frank Long, Sulphur Springs, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

Henry Julio Ortiz ("Appellant") was convicted by a jury of possession of more than fifty pounds, but less than two thousand pounds, of marijuana. Thereafter, the jury assessed Appellant's punishment at seven years' imprisonment. Appellant assigns three points of error. We will affirm.

In his first point of error, Appellant claims that he was convicted on "insufficient evidence," without stating whether he complains of the legal insufficiency or the factual insufficiency of such evidence. Therefore, in the interest of justice, we will review the evidence for both legal and factual sufficiency.

When an appellant challenges both the legal and factual sufficiency of the evidence, an appellate court must first determine whether evidence adduced at trial was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App.1996). The standard for reviewing the legal sufficiency of the evidence is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App.1991); Richardson v. State, 879 S.W.2d 874, 879 (Tex.Cr.App.1993), cert. denied, --- U.S. ----, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a mere modicum of evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App.1988).

After an appellate court determines that the evidence is legally sufficient to support the verdict under the Jackson standard, the court may then proceed to review factual sufficiency. Clewis, 922 S.W.2d at 133. In conducting a factual sufficiency review, this Court must view all the evidence impartially 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. Clewis, 922 S.W.2d at 135; Bigby v. State, 892 S.W.2d 864, 875 (Tex.Cr.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995).

In a circumstantial evidence case, it is not necessary that each fact, by itself, directly and independently prove the guilt of the accused. The cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Cr.App.1987). Circumstantial evidence cases have no different standard of review than those cases supported by direct evidence. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Cr.App.1991).

Appellant cites a lack of direct proof that he knowingly or intentionally possessed the marijuana. Proof of a culpable mental state generally exists in circumstantial evidence. Gardner v. State, 736 S.W.2d 179, 182 (Tex.App.--Dallas 1987), aff'd, 780 S.W.2d 259 (Tex.Cr.App.1989). Thus, proof of knowledge is an inference drawn by the trier of fact from all the circumstances. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Cr.App.1978); Trejo v. State, 766 S.W.2d 381, 385-386 (Tex.App.--Austin 1989, no pet.). A jury can infer knowledge or intent from the acts, conduct, and remarks of the accused and from the surrounding circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.--El Paso 1995, pet. ref'd); Sharpe v. State, 881 S.W.2d 487, 490 (Tex.App.--El Paso 1994, no pet.). Evidence which affirmatively links the accused to the contraband suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App.1995).

A person commits an offense of second degree felony possession of marijuana if the person intentionally or knowingly possesses more than fifty pounds, but less than two thousand pounds, of marijuana. TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (Vernon 1992 & Supp.1996). Possession is defined as "actual care, custody, control or management." TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 1992). To prove unlawful possession of a controlled substance, the State must prove (1) that the accused exercised care, control, or management over the contraband, and (2) that the accused knew the substance was contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex.Cr.App.1988).

A jury may infer that the accused had actual care, control, or management of a controlled substance from the presence of certain incriminating factors. Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.--Austin 1989, no pet.). See, e.g., Deshong v. State, 625 S.W.2d 327, 329 (Tex.Cr.App.1981) (accused owned the automobile in which contraband was found, accused operated the automobile, and the contraband was so situated that it was accessible to the accused). Additionally, a jury may infer that a person in control of a vehicle has knowledge of the presence of the contraband, particularly where the amount of contraband is large enough to indicate the person knew of its existence. Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.--El Paso 1995, pet ref'd.) (jury could infer from presence of 49.5 pounds of marijuana that defendant knew contraband was in vehicle). Further, when an accused is operating a vehicle and is alone, he exercises control over the vehicle in which the contraband is concealed, and is deemed to have possession of the contraband. Id.

Similarly, the presence of certain factors creates an inference that the accused knew of the presence of the contraband and its forbidden nature. Lewis v. State, 664 S.W.2d 345, 349 (Tex.Cr.App.1984) (conduct by accused indicated a consciousness of guilt); Duff v. State, 546 S.W.2d 283, 287 (Tex.Cr.App.1977) (odor of raw or recently burned marijuana indicated accused knew of contraband and occupants of car gave conflicting statements about relevant matters).

On May 9, 1995, Texas Department of Public Safety Trooper Bruce Roberts and Trooper Paul Noble were working routine patrol on Interstate 30 East in Sulphur Springs, Hopkins County, Texas. At approximately 10:30 p.m., the troopers' vehicle was parked on the shoulder of the interstate. Appellant drove a red 1986 Chevrolet Camaro past the troopers, weaved left and hit the grassy median, kicking up dirt and grass. The troopers pursued Appellant, and observed that the Camaro continued to weave, this time in the right lane, striking the stripes on both sides of the lane two or three times. Roberts testified that he and Trooper Noble thought Appellant was intoxicated. After the troopers pulled Appellant over, Appellant got out of the Camaro and approached them. Roberts informed Appellant that they had stopped him for weaving dangerously. Roberts then questioned Appellant about his trip and asked if he had proof of insurance, which he did not. Appellant acted nervous and appeared to be "under the influence of something." Roberts questioned Appellant about his line of work. Appellant stated that he was a contractor, and that he was going to Memphis where he had a crew and work to be done. However, Appellant could not name the members of his crew. Roberts had done a lot of construction work on homes for his father and grandfather, who were builders, and Appellant's answers concerning his contracting work aroused Roberts' suspicions. In answering the questions, Appellant took about thirty seconds to answer each question and did not make eye contact. Appellant told the officers he had purchased the Camaro from a used car dealer in Memphis, but could not identify the dealer. The car had Texas license plates and was not registered to Appellant. The officers were suspicious and asked Appellant if they could search his car for drugs. Appellant refused and folded his arms in a defensive manner. Roberts testified that he had been involved in over a hundred drug busts involving automobiles and stated that he formed the opinion Appellant possibly had drugs in the car. The officers administered a horizontal gaze test, ¹ which Appellant passed. However, in the officers' opinion, Appellant was "under the influence of something." The officers called Scott Sewell, a drug dog handler with the Sulphur Springs Police Department. Sewell arrived with his drug dog within twenty minutes.

Sewell testified that he and the drug dog were duly certified and schooled in canine drug detection. The dog identified the location of drugs by scratching where he smelled drugs in the vehicle. First, the dog scratched at the passenger door, and then scratched at the trunk. Sewell stated the dog identified the door because the smell of marijuana was also present at the door.

The officers then opened the trunk and found more than fifty pounds of marijuana in five wrapped and taped bundles under a blue blanket. They also found a hand-drawn map in a bag showing a route from San Antonio to an address in Memphis, and a prescription pill bottle for Prozac with one pill inside. Appellant was carrying approximately $400.00 in cash.

Appellant testified at trial and denied he had been weaving on the highway. He further stated that he was arrested around dusk and not at 10:30 p.m. as Roberts had testified. Appellant had traded his Yugo at a garage in San Antonio and acquired the Camaro from a Hispanic he could not identify. Appellant stated he was going to Memphis to do contracting work. Appellant stated that he had previously been a contractor while working full time with at-risk children. He stated that he had dropped out of seminary several years before, and denied any knowledge of the marijuana in the trunk. Appellant explained that he was on Prozac because he had a nervous breakdown when his wife left...