Villarreal v. State

• Decision Date: 15 September 1993
• Docket Number: 13-92-503-CR,Nos. 13-92-502-C,s. 13-92-502-C
• Parties: Carlos Antonio VILLARREAL and Janeen Marie Villarreal, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 501

865 S.W.2d 501

Carlos Antonio VILLARREAL and Janeen Marie Villarreal, Appellants, v. The STATE of Texas, Appellee.

Nos. 13-92-502-CR, 13-92-503-CR.

Court of Appeals of Texas Corpus Christi.

Sept. 15, 1993.

Randell Friebele, Harlingen, for appellants.

Luis Saenz, John Olson, Cameron County Dist. Attorney's Office, Brownville, for appellee.

Before KENNEDY, SEERDEN, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

KENNEDY, Justice.

A jury found Carlos and Janeen Villarreal guilty of possession of cocaine. The court sentenced each of them to eight years' confinement. The court probated the confinement for eight years and assessed a $500 fine against each. The Villarreals appeal by five points of error. We reverse and acquit.

Acting on a tip from a confidential informant that Carlos Villarreal and Phillip Castaneda were selling cocaine from Villarreal's home, the Cameron County Drug Task Force ("agency") began periodic surveillance on the Villarreal home. They witnessed different persons stopping by the home for approximately five minutes, a common pattern for houses in which drugs are sold. The agency got a search warrant for the home.

On November 5, 1991, Carlos came home from work at about 10:00 p.m. While he was in the shower, Castaneda and Mike Mayorga arrived. Castaneda was an occasional overnight guest of the Villarreals. Castaneda went into a bedroom to put on one of Janeen's sweaters. Janeen stayed in the living room watching television and dozing lightly. Carlos and Mayorga went outside to look at Mayorga's car.

The agents arrived at the Villarreals' home. They talked briefly with Carlos and Mayorga and told them of their intent to search the house. The agents knocked on the door. They heard feet shuffling and an indecipherable female voice yelling in the house for 40-60 seconds before Janeen answered the door. They entered the house and went to the locked door of the guest bedroom. They heard the sound of a toilet flushing behind that door. Just as they were about to knock the door down, Castaneda opened the door. The agents entered the room and found a baggie of marijuana, marijuana residue, and a baggie of cocaine in the toilet. They also found scattered around the bedroom numerous small baggies containing what appeared to be cocaine residue. They also found a scale, a package of rolling papers and a single-edged razor blade. In the Villarreals' bedroom, the agents found two bongs (homemade devices used to smoke marijuana), roach buds (marijuana cigarette butts), and a bowl of single-edged razor blades.

The Villarreals said they rarely entered the guest bedroom, and denied seeing the scales or the baggies found in the guest bedroom. Carlos admitted smoking marijuana, but both Villarreals denied knowing anything about the cocaine. Though an agent testified that single-edged razor blades are preferred to divide cocaine, Carlos testified that he used them to scrape auction numbers off cars at his car lot and that he kept them around for general utility purposes. Janeen said people stopped by the house briefly seeking car parts from Carlos. She was the only woman in the house at the time.

The court denied the Villarreals' motion for directed verdict at the close of the State's evidence and their motion for new trial.

By point of error five, the Villarreals challenge the sufficiency of the evidence to support their conviction for possession of cocaine. In reviewing a sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). As this trial occurred well after Geesa v. State, we do not use the reasonable hypothesis analytical construct to examine the circumstantial evidence tying Villarreals to the cocaine. 820 S.W.2d 154, 163-165 (Tex.Crim.App.1991). We apply a pure Jackson analysis. Geesa, 820 S.W.2d at 155-162. The jury, as the factfinder, is the exclusive judge of credibility, weight, and balance of testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). The jury may accept or reject all or part of any witness's testimony. Id.

We measure the sufficiency of the evidence against the indictment as incorporated into the jury charge. Benson v. State, 661 S.W.2d 708, 715 (Tex.Crim.App.1982) (opinion on rehearing). The court charged the jury on possession and on the law of parties. The court charged the jury that it could find that the Villarreals possessed cocaine if they had actual care, custody, control, or management of the drug, knowing that they possessed it and knowing what it was. The court charged the jury that it could find the Villarreals guilty as parties to possession if, acting with intent to promote or assist the possession, they solicited, encouraged, directed, aided, or attempted to aid the actual possessor.

To show possession, the evidence must affirmatively link the defendant to the contraband by showing the indicia of possession set out in the charge. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985); Garza Gonzalez v. State, 783 S.W.2d 774, 776 (Tex.App.--Corpus Christi 1990, no pet.). ¹ The possession need not be exclusive, but the evidence must link the defendant to the drugs. McGoldrick, 682 S.W.2d at 578. More facts than mere presence...