Rodriguez v. State

HECTOR RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 11-17-00214-CR

State of Texas in the Eleventh Court of Appeals

April 16, 2020

On Appeal from the 29th District Court Palo Pinto County, Texas

Trial Court Cause No. 15627

MEMORANDUM OPINION

The jury convicted Hector Rodriguez of possession of a controlled substance (cocaine) with intent to deliver and assessed his punishment at confinement for a term of life in the Institutional Division of the Texas Department of Criminal Justice. Appellant challenges his conviction in five issues. We affirm.

Background Facts

Texas Department of Public Safety Trooper Phillip McKenzie stopped a brown Toyota pickup on January 9, 2015. He testified that the pickup committed a traffic violation by pulling out in front of him at an intersection when the pickup had a stop sign. The pickup had an expired temporary license tag. Appellant's wife, Diana Borrego, was the driver, and Appellant was a passenger in the front seat. The couple told Trooper McKenzie that Appellant worked in the oilfield in West Texas and that West Texas was their destination. Trooper McKenzie believed that their story was suspicious because he did not see a hard hat or boots in the pickup. Additionally, Trooper McKenzie determined that both occupants had prior convictions for drug offenses.

Because the pickup was registered to Appellant, Trooper McKenzie asked him for consent to search it. Appellant gave his consent to Trooper McKenzie to search the pickup. Trooper McKenzie first found a "water pipe" or "small bong." He found this pipe on the passenger's side floorboard. Borrego claimed that the pipe belonged to her son. A search of a jacket that belonged to Appellant revealed another pipe that appeared to have methamphetamine residue. Trooper McKenzie also found a small dietary supplement bottle in that jacket. A subsequent search of this bottle revealed the presence of 7.53 grams of cocaine.

After searching Appellant's jacket, Trooper McKenzie searched the console between the driver and passenger seats. There were two "Styrofoam" cups located in the console. Trooper McKenzie pulled the lid off one of the cups, and he observed a "small sandwich bag containing a white powdery substance." It was later determined that this bag contained 12.02 grams of cocaine. Trooper McKenzie arrested Appellant and Borrego after finding the cocaine in the cup. Borrego claimed ownership of the cocaine inside of the pickup. However, she was unable to tell Trooper McKenzie that the cocaine was located inside the cup or how it was packaged when he asked her these questions.

Trooper McKenzie also found a digital scale in the driver's side door, unused Ziploc bags, a grinder with cocaine residue, prescription medications for whichneither Appellant nor Borrego had a prescription, a bag of what appeared to be marihuana, and other pipes for using methamphetamine or crack cocaine. Trooper McKenzie testified that the amount of almost twenty grams of cocaine was beyond a "personal use amount." Trooper McKenzie testified that the amount of cocaine that he found would be an amount possessed by someone involved in drug trafficking. He also testified that baggies and digital scales like those found in Appellant's pickup are used in the distribution of drugs.

The State also offered the testimony of Texas Department of Public Safety Special Agent Steve Tuggle. He also confirmed that the amount of cocaine found in the pickup was "more than just a personal use amount." Special Agent Tuggle testified that a grinder and sifter like the one found in the pickup is used for "cutting" drugs for distribution and that baggies and digital scales are also used to package drugs for distribution.

Sufficiency of the Evidence

In his third issue, Appellant challenges the sufficiency of the evidence supporting his conviction. He contends that the evidence failed to show that he knowingly possessed cocaine or that he had an intent to distribute it. We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

When conducting a sufficiency review, we consider all of the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

A person commits the offense of possession with intent to deliver a controlled substance if he knowingly possesses a drug with the intent to deliver it. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017). Possession is defined as "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2019). To prove unlawful possession of a controlled substance, the State must show (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Hughitt v. State, 539 S.W.3d 531, 538 (Tex. App.—Eastland 2018), aff'd, 583 S.W.3d 623 (Tex. Crim. App. 2019). The evidence must establish that the accused's connection with the drugs is more than just his fortuitous proximity to someone else's drugs. Poindexter, 153 S.W.3d at 405-06; Hughitt, 539 S.W.3d at 538.

A person need not have exclusive possession of a controlled substance in order to be guilty of possession—joint possession will suffice. Hughitt, 539 S.W.3d at538; see McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Appellant asserts that the evidence failed to demonstrate that he jointly possessed the cocaine with Borrego. He relies on Borrego's claim during the traffic stop that the cocaine solely belonged to her. Appellant also asserts that Borrego later pleaded guilty to possession of the cocaine. We disagree with Appellant's analysis.

Borrego's guilty plea was not admitted as evidence at trial. Accordingly, we do not consider her guilty plea in our sufficiency analysis because it was not admitted as evidence at trial. See Winfrey, 393 S.W.3d at 767 (when conducting a review of the sufficiency of the evidence, we consider all of the evidence offered at trial). Borrego did not testify at trial. The evidence concerning Borrego's claim of the cocaine was presented in two forms: Trooper McKenzie's testimony about Borrego's statements and a recording of the traffic stop that was played for the jury.

As noted previously, Borrego initially claimed ownership of the cocaine that Trooper McKenzie said he found in the pickup. In this regard, Trooper McKenzie arrested Appellant and Borrego after he found the cocaine in the cup. However, Borrego was unable to tell Trooper McKenzie that there was cocaine in a cup or how it was packaged. Instead, it appears that she told Trooper McKenzie about the cocaine that was subsequently found in Appellant's jacket, stating that she placed it in his jacket.

To the extent that Borrego claimed sole ownership of the cocaine found inside the pickup, the jury was free to reject her claim, and we defer to the jury's decision to do so. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778. Borrego was unable to describe the cocaine in the cup or how it was packaged, which is inconsistent with her claim of sole ownership. Accordingly, there was evidence that supported the jury's rejection of her claim.

Appellant also asserts that the evidence was insufficient to show joint possession of the cocaine. Texas courts have formulated the "affirmative links rule,"which provides that, "[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Poindexter, 153 S.W.3d at 406 (alteration in original) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing affirmative links recognized by courts).¹ The affirmative links rule is routinely employed to establish joint possession when the accused is not in exclusive possession of the place where the drugs are found. Poindexter, 153 S.W.3d at 406. "This rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Id.

Appellant contends that the facts in this case are analogous to those in Hughitt. In Hughitt, we determined that the evidence was...