Ybarra v. State
| Decision Date | 11 September 2003 |
| Docket Number | NO. 14-02-00438-CR.,14-02-00438-CR. |
| Parties | JOSE LUIS YBARRA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 23rd District Court Brazoria County, Texas, Trial Court Cause No. 34,313.
Panel consists of Justices Yates, Hudson, and Frost.
Appellant Jose Luis Ybarra appeals his conviction for possession of marijuana weighing between five and fifty pounds. Appellant argues that: (1)-(2) the evidence is legally and factually insufficient to show he knew there was marijuana in the gas tank of the car he was towing; (3) the prosecutor made an improper comment during opening statement that deprived appellant of a fair and impartial trial; and (4) the State violated appellant's right to a speedy trial. We affirm.
Appellant was driving a truck, with a car in tow, on a public highway when a police officer stopped him. Appellant was arrested after he failed to provide a driver's license and proof of insurance during the traffic stop. The police officer noticed that appellant and the three other men in the truck appeared nervous. Another officer noticed that the bolts on the gas tank of the car being towed looked as though they had been removed recently. Police then called for a dog trained to alert to narcotics. When the narcotics dog arrived on the scene, it indicated there were narcotics in the gas tank area of the car appellant had been towing. Police found 15.3 pounds of marijuana in the gas tank of the car.
Appellant was charged with possession of marijuana, weighing between five and fifty pounds. The jury found appellant guilty and assessed punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division.
Appellant presents the following issues for appellate review:
(1)-(2) Is the evidence legally and factually sufficient to prove appellant intentionally or knowingly possessed the marijuana found in the gas tank of the car appellant was towing?
(3) Was appellant denied a fair and impartial trial by the prosecutor's allegedly improper comment made during the State's opening statement?
(4) Was appellant's right to a speedy trial violated?
In his first issue, appellant argues the evidence is legally insufficient to prove he intentionally or knowingly possessed the marijuana found in the gas tank of the car he was towing. Appellant specifically complains that the evidence does not affirmatively link him to the marijuana and, therefore, no reasonable jury could have concluded beyond a reasonable doubt that appellant knew about the marijuana in the gas tank.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We may not overturn the jury's verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003). Moreover, it is not necessary that all facts point directly or indirectly to the defendant's guilt, if the combined and cumulative effect of all incriminating circumstances point to his guilt. Linton v. State, 15 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).
To establish the offense of unlawful possession of a controlled substance, the State must prove the charged individual "intentionally or knowingly" possessed a controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Possession is intentional or knowing when an accused has (1) exercised actual care, custody, or control of the substance, and (2) known that the substance was contraband. Id. The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). However, when an accused is not in exclusive control of the contraband, any conclusion that he exercised control over it must be supported by additional independent facts and circumstances affirmatively linking him to the contraband. Id. Circumstantial evidence is sufficient to prove possession as long as the evidence affirmatively links the accused to the contraband by showing his connection with it was more than fortuitous. Brown, 911 S.W.2d at 747.
Affirmative links are established by a totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd). In assessing affirmative links, Texas courts have considered many factors, including: the amount of contraband found, whether the amount was large enough to indicate the accused knew of its existence, the proximity of the accused to the contraband, whether the accused had convenient access to the contraband, conflicting statements given about relevant matters by occupants of a vehicle, and conduct of the accused indicating a consciousness of guilt. See Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (); Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (); Cooper v. State, 788 S.W.2d 612, 614 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd) (). None of these factors is necessarily determinative and, when examining the affirmative links, it is not the number of factors present that is important, but the logical force they have in establishing the offense. Gilbert, 874 S.W.2d at 298. Because knowledge is subjective, it usually must be inferred in the absence of an admission of guilt by the accused. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
Though appellant argues the State failed to affirmatively link him to the marijuana in the gas tank, the record contains sufficient evidence of affirmative links. At the time of the traffic stop, appellant was traveling with two of his brothers, Augustine Ybarra and Oscar Ybarra, and a third man, Paul Reed. Appellant and the other three men in the truck appeared nervous when the police talked to them. See Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref'd) (). Appellant did not have a driver's license or proof of insurance. None of the other men in the truck presented a valid photo identification or proof of insurance. When asked his name, appellant lied to the police, telling them his name was "Gustav Popaco." See Coonradt v. State, 846 S.W.2d 874, 876 (Tex. App.— Houston [14th Dist.] 1992, pet. ref'd) (). Appellant admitted his real name only after the police arrested him and his fingerprints revealed his true identity. Moreover, the location of the contraband — in the gas tank of the car — also tended to link appellant to the narcotics. In order to conceal the marijuana in this location, the gas tank of the car had to be removed and the record strongly suggests appellant was the only occupant of the vehicle that was an automobile mechanic.[1]
Appellant's brothers' accounts of appellant's role in towing the marijuana-laden car differed in important respects. Most notably, the brothers did not agree as to who knew about the marijuana in the gas tank or about who put the marijuana in the gas tank. Both brothers testified that the original plan was to transport the marijuana from Brownsville, Texas, to Pearland, Texas, in the car, but that those plans were derailed when the car broke down in Sarita, Texas. Both brothers testified appellant appeared nervous and lied to the police officer about his identity because he believed there were outstanding warrants for his arrest.
Oscar Ybarra pleaded nolo contendere to possession of marijuana charges stemming from this incident. At appellant's trial, Oscar testified that appellant was not in the car when it stopped running in Sarita; Oscar, Augustine, and Reed were its only occupants. According to Oscar's testimony, when the car broke down in Sarita, Augustine called appellant, who was then in Pearland, to come to Sarita to repair the car. Oscar testified that appellant did not know about the marijuana in the gas tank because he was not present when the other three men placed it there a day or two before leaving Brownsville. Oscar also testified that the...
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