Vela v. State

RICARDO VELA, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-16-00786-CR

State of Texas in the Fourteenth Court of Appeals

February 22, 2018

On Appeal from the 248th District Court Harris County, Texas

Trial Court Cause No. 1489184

MEMORANDUM OPINION

Appellant Ricardo Vela appeals his conviction for possession with intent to deliver at least 400 grams of cocaine. See Tex. Health & Safety Code Ann. § 481.112(a) (West 2017). In two issues, appellant challenges the sufficiency of the evidence and contends the trial court erred in its assessment of a fine against appellant. We affirm.

I. BACKGROUND

Marco Arizpe is the cousin of appellant's wife. Arizpe arranged for the sale of eight kilograms of cocaine to undercover Pasadena Police Detective Duran. Before the meeting, Arizpe notified Duran that he would be bringing his cousin and the supplier to the deal. On November 19, 2015, appellant drove Arizpe to the deal in his red Chevy truck. Appellant parked in the lot of a Bass Pro Shop, next to a white Dodge Ram belonging to the supplier, Adrian Marez. While appellant and Arizpe were inside the truck together, Arizpe spoke with Duran on his cell phone and told him that the supplier had arrived at the location.¹

Duran drove to the location where appellant's vehicle and the white Dodge were parked with two other undercover officers, Pasadena Police Detectives Rebollar and Alvarez. Additional detectives conducted surveillance from another spot in the parking lot. Once parked, Duran, Rebollar, and Alvarez exited the vehicle and greeted appellant, Arizpe, and Marez. Appellant remained in the driver's seat of his truck, with the driver's-side window rolled down. During the transaction, Rebollar stood next to appellant and between the red Chevy and the white Dodge while Duran got into the back of the white Dodge to inspect the cocaine. Appellant and Rebollar briefly talked about the transaction. Appellant asked Rebollar if Duran, Rebollar, and Alvarez would be going up north, and Rebollar responded affirmatively, explaining that they were trying to gather a load of narcotics because it was not worthwhile to take a small amount north. Rebollar assured appellant that the cocaine would be secure. Appellant "mentioned something about . . . the firsttime" being "challenging," and Rebollar agreed that the first narcotics deal was always difficult.

While appellant and Rebollar were talking, Duran counted the number of cocaine bricks out loud within hearing distance of appellant and Rebollar. Once Duran confirmed that all eight kilograms of cocaine were there, he took the backpack containing the cocaine to the front of the two trucks and handed it to Rebollar. Rebollar put the backpack in the detectives' vehicle at Duran's instruction. At that point, Duran signaled the officers maintaining surveillance. Appellant, Arizpe, and Marez were arrested. Subsequent analysis confirmed that the bricks were in fact cocaine, weighing approximately 7800 grams.

Appellant was charged with the felony offense of possession with intent to deliver at least 400 grams of cocaine. He pleaded "not guilty." At trial, detectives testified to the facts of the transaction stated above. The State also presented a video of appellant's interview at the Pasadena police station subsequent to his arrest. In the interview, appellant denied any involvement in the transaction. He claimed he was simply giving Arizpe a ride.

Duran testified that based on his experience as a narcotics officer, primary sellers in large narcotics transactions require assistance from other individuals to secure the transaction:

Larger scales of narcotic operations like the one in this case you're talking about negotiated price is twenty-seven five per kilo. So you're talking about $220,000.00. So with that you have your security of your back guy is going to show-up with security and look out. There's nobody on their right mind's going to show-up with just one person and hand over eight kilos of cocaine to the buyer, which the buyer be myself and a couple of my partners show-up. So they're looking at if three cops showing up. They're looking at like three other guys that want my cocaine's showing up. I'm not sure if they're bringing my money. So until [sic] the three individuals involved in my case one was a [sic]actual seller.

Duran explained that in an initial sale of narcotics, sellers are typically concerned about the narcotics being stolen by purported buyers:

During the initial sell it's initial distrust. You don't know if I'm legitimately coming to buy or what they call a rip.

. . .

Drug rip is when you—when I arrange a meeting for the sale of cocaine and I speak to you guys and tell y'all I have ex [sic] amount ready for y'all. You can show-up with ex [sic] amount of dollars. That's when the guys try to come and rip, come up with guns, hurt or kill me and take it from me by gun force and I lose my drugs. I'm not able to call the police.

Duran explained that the assistance provided to the primary seller in a drug transaction was essential to completion of the deal:

They're all like part of the company. Everybody has their role. And each person does their role correctly and efficiently. If you—just like any team, any actual business, if you have a weak point you're going to—it's going to be hard for you to complete the entire transaction. Everybody has to know their role and everything has—they hope moves smoothly in order for it to be completed correctly and the right way they want it.

The only witness to testify on appellant's behalf was Arizpe. Arizpe had previously entered a plea bargain and signed a statement in which he stipulated that he committed the offense of possession with intent to deliver at least 400 grams of cocaine "along with" appellant and Marez. His statement came into evidence at appellant's trial. On the stand, Arizpe testified the statement was untrue and that appellant had no knowledge of the drug deal. However, Arizpe also testified that he would say "whatever it takes to make sure [appellant] doesn't go to prison."

The jury found appellant guilty. The trial court sentenced him to 32 years confinement and assessed a fine of $100,000. This appeal followed.

II. ANALYSIS

A. Sufficiency of the evidence

In his first issue, appellant contends the evidence is insufficient to show that he was guilty of possession with intent to deliver over 400 grams of cocaine. Appellant asserts there was no evidence that appellant or Arizpe had actual care, custody, or control over the cocaine, and there was no evidence that appellant was a party to the possession with intent to deliver by Marez.

Reviewing courts apply a legal-sufficiency standard in determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); see also Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. App. 2013). Under this standard, we examine 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 crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; see also Temple, 390 S.W.3d at 360.

The jury is the sole judge of credibility. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319). The jury must resolve conflicts in the evidence and is free to accept or reject any or all of the evidence presented by either side. See Elizondo v. State, 487 S.W.3d 185, 209 (Tex. Crim. App. 2016) ("As the fact-finder, the jury was free to reject some or all of [appellant's] version of the events . . . ."); Temple, 390 S.W.3d at 360. The jury may draw multiple reasonable inferences from the facts so long as each is supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. at 13. Although the State must prove thata defendant is guilty beyond a reasonable doubt, it need not disprove every conceivable alternative to the defendant's guilt. Jackson, 443 U.S. at 326; Tate, 500 S.W.3d at 413.

1. Principal or party

Appellant was charged with possession with intent to deliver at least 400 grams of cocaine. The trial court's charge authorized the jury to convict appellant either as a principal or as a party. To prove the offense as a principal actor, the State was required to show that appellant: (1) exercised care, custody, control, or management over the controlled substance;² (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(a) (West 2017); Cadoree v. State, 331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).

To convict under the law of parties, the State was required to show that appellant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. Tex. Penal Code Ann. § 7.02(a)(2) (West 2017). Accordingly, proving possession with intent to deliver as a party requires showing that: (1) another person possessed the controlled substance and intended to deliver it, see Torres v. State, 233 S.W.3d 26, 30 n.2 (Tex. App.—Houston [1st Dist.] 2007, no pet.); and (2) appellant, with the intent that the offense be committed, solicited, encouraged, directed, aided, or attempted to aid the other person's possession with intent to deliver. Tex. Penal Code Ann. § 7.02(a)(2). For conviction, either as a principal or a party to the offense, the State must show knowledge of the presenceof the controlled substance. See Tex. Health & Safety Code Ann. § 481.112(a); Robinson...