Court of Appeals of Texas,Amarillo.
Anibal Heriberto VALLE, Appellant
v.
The STATE of Texas, Appellee.
Dec. 29, 2006.
From the 31st District Court of Wheeler County; No. 3972; Steven R. Emmert, Presiding.
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Opinion
BRIAN QUINN, Chief Justice.
Anibal Heriberto Valle (appellant) appeals his conviction for possessing approximately 30 pounds of marijuana. The contraband was found within a pallet of corn flour. The corn flour was being hauled in a trailer of an eighteen wheeler along with other cargo. Appellant drove the eighteen wheeler. The six issues before us concern the legal and factual sufficiency of the evidence supporting his conviction. We reverse and remand.
Applicable Law
When both the legal and factual sufficiency of the evidence is challenged, the former must be addressed first. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). Next, in determining issues of legal sufficiency, we ask if, after reviewing all of it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense to exist beyond a reasonable doubt. Evans v. State, No. PD-1911-05, 2006 Tex.Crim.App. Lexis 1815 (Tex.Crim.App. September 20, 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). Moreover, evidence contradicting the verdict is ignored, Saxer v. State, 115 S.W.3d 765, 769 (Tex.App.-Beaumont 2003, pet. ref’d), and disputes involving the credibility of witnesses are left to the jury to resolve. Jones v.. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).
On the other hand, we view the evidence in a neutral light when assessing its factual sufficiency. Watson v. State, 204 S.W.3d 404, —- (Tex.Crim.App.2006). Our role is akin to sitting as “a thirteenth juror,” but only “to a very limited degree.” Id. Being so restricted, however, we may not simply substitute our perception of the evidence for that of the jury. Id. Rather, the tenor of the record must leave us with “a high level of skepticism about the jury’s verdict” before we can reject it. Id . That is, we must “be able to say, with some objective basis in the record” either that the great weight and preponderance of the evidence (though legally sufficient) contradicts the verdict or that the evidence supporting conviction is so weak that the verdict “seems ‘clearly wrong and manifestly unjust[.]’ “ Id., quoting Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000).
So too must it be remembered that evidence comes in many forms, two of which are direct and circumstantial. Both are probative and merit consideration. And, so long as it is admissible and of sufficient quantum, either can support the verdict. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004). Indeed, there are times when the only evidence indicative of guilt is circumstantial, such as in cases like that at bar. For instance, to secure a lawful conviction, it was encumbent upon the State to prove appellant exercised control, management, or care over the substance while knowing it to be contraband. Poindexter v. State, 153 S.W.3d at 405-06 (describing the elements of the crime at issue as exercising control, management, or care over the contraband while knowing it to be contraband). While the record at bar is replete with direct evidence of the first element (as evinced by appellant driving the contraband across country), no such evidence illustrates that he knew of the marijuana.
So, the legitimacy of the verdict depends upon whether the circumstantial evidence appearing of record and reasonable inferences therefrom were enough to support conviction. Making this assessment is rendered a bit more difficult when, as here, the drugs were not found on the accused’s person or in areas within his exclusive control. In all cases, the accused must be linked to the drugs. Establishing that link is quite easy when the substances are found on his person for it is reasonable to infer that people know what they have on their person. But, when the contraband is elsewhere or in a locale over which the suspect does not have sole control, then the distance that is created in the link must be bridged. In building that bridge, we consider numerous indicia or links. Furthermore, each serves as a pillar, and there must be enough in place to span the gap and tie the drugs to the accused. This does not mean that all the pillars must be in place. Evans v. State, supra. Rather, there need only be enough to make the jump. Or, in legal jargon, the logical force emanating from the links must enable a jury to rationally infer, beyond reasonable doubt, that the element of the crime in dispute existed. See id. (noting that the logical force, or lack thereof, emanating from those links found to exist is determinative).
Though the indicia were once characterized as “affirmative links,” we now simply refer to them as links. Evans v. State, No. P.D.-1911-05, 2006 Tex.Crim.App. Lexis 1815 n. 9 (Tex.Crim .App. September 20, 2006).
The aforementioned indicia or links consist of such things as whether 1) the accused was present when the search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance found, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant uttered any incriminating statements, 7) the defendant attempted to flee or undertook other acts indicating a consciousness of guilt, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the right to exclusive or joint possession of the locale at which the drugs were found, 12) the place where the drugs were found was enclosed, 13) the amount of contraband discovered, and 14) the accused was familiar or had experience with drugs. Evans v. State, supra. By no means is this list exclusive; there may be others. But, again, irrespective of which are used, the force of their sum at bar must have been enough to lawfully permit the jury to infer (beyond reasonable doubt) that appellant knew of the drugs he was transporting.
Application of Law
Record Evidence
Viewing the record evidence, we note the following. The 30 pounds of marijuana was divided into 22 packets and placed in one box. The packets were either lined or sprinkled with lotion and pepper, set upon a pallet, and surrounded with sacks of corn flour. The sacks of flour, some individually wrapped in plastic and others wrapped in packets of ten, covered not only the sides of the box but its top as well. Then, the pallet, along with three others containing sacks of flour (wrapped in packets of ten) were loaded into the trailer. Who wrapped the flour and stacked it on the pallets does not appear of record. Nor does the record disclose whether or not the box was inserted before or after the pallets of flour were loaded. One of the testifying officers (who had experience as a trucker) did opine, though, that truck drivers do not load their cargo; others do it for them. And, this testimony comports with that of appellant for he said he remained in the truck’s sleeper unit while third parties loaded the cargo. Yet, irrespective of who loaded the pallets of flour or when the marijuana was hidden within it, whoever did so also placed cardboard atop each pallet to cover it.
Next, to reach the flour, one of the arresting officers had to climb over two other pallets. These contained sacks of charcoal also wrapped in plastic. Furthermore, the charcoal was stacked high enough to leave only a small crawl space between it and the trailer’s roof. Additionally, both the pallets of charcoal and flour were placed at the front of the trailer; so too did they fill only about a quarter of the available space. The remainder of the trailer was empty. With the trailer being loaded in that manner and lacking internal lights, the contents within it were not easily visible, according to an officer.
Of note was the testimony that flour and charcoal were “absorbents.” Being such, the officers opined that they (along with the lotion and pepper) can be used by drug traffickers to mask odor which drugs may emit. This may be why neither officer could smell the marijuana themselves. Instead, it took a drug dog to discover the scent. Yet, whether charcoal and flour had the same absorbing properties when wrapped in plastic went unaddressed.
According to the record, the officers first encountered appellant as he drove the eighteen wheeler from California down I-40 and through Wheeler County. According to them, he owned the truck tractor while someone named Ramos owned the trailer. Furthermore, he had been given the job of transporting several cars from California back to his home state of North Carolina. Because the cars were not ready for transport when appellant arrived in California, he was directed to pick up other loads, those loads being the corn flour and charcoal in question.
As appellant purportedly made his way back to North Carolina, an officer stopped him as part of a routine inspection. During the stop, appellant gave the officer two documents representing the contents of his trailer. One (pertaining to the charcoal) was a form bill of lading the blanks of which having been completed in handwriting. The other (pertaining to the flour) was an electronically printed cash receipt. They both had the name, street address and phone number of the business at which the particular commodity was acquired. The appearance of the bill of lading seemed odd to the officer since he opined that most were now completed electronically. Yet, he admitted that there was nothing illegal in a bill being completed by hand. So too was the receipt deemed odd, given that it did not appear to be a bill of lading but rather a cash sales receipt. According to the officer, cargo was generally paid for via credit not cash. Nevertheless, no one opined that it was illegal to acquire cargo that had been paid for in cash. Nor did either of the testifying officers opine that appellant was the one who actually paid for the corn flour or that he ever had an amount of money on him sufficient to pay for it. They simply concluded that someone had to pay for it.
An officer testified that no street address appeared on the corn flour receipt. One need only read the document to see that he was mistaken. Furthermore, should the address be “googled,” one would discover that the address is tied to the business name appearing on the receipt.
Though an officer made effort, at one time or another, to verify the identity of the name of the contact person (Juan) mentioned on both documents, he met with little success. He did talk with people at the establishments but his attempt to fax the documents to them per their request went for naught; the fax numbers purportedly were inoperative. And, his subsequent phone calls either went unanswered or resulted in a busy signal.
That appellant’s signature appeared on neither the bill nor receipt was another cause for concern mentioned by at least one officer. He opined that truck drivers usually sign such documents upon receiving the cargo.
As for the conduct of appellant during the stop and ensuing search, both officers stated that he was cooperative and calm. He answered their questions, consented to a search of the vehicle, and voluntarily unlocked the cargo doors to permit it. Furthermore, when the drugs were ultimately discovered appellant revealed no marked change in his demeanor, according to one officer. The other, however, contradicted this testimony by describing that appellant acted in “disbelief.” How this supposed disbelief was evinced went unmentioned. So too did this officer opine that acting in disbelief is often an attempt to mask guilt, but, he did not say how he interpreted appellant’s reaction. Nor did he provide the jurors with any indicia which they could use to determine its sincerity.
It is interesting how easily evidence of demeanor can be manipulated to mean just about anything. Some suggest that nervousness indicates guilt. Others find culpability in a suspect’s calmness. Should he cooperate with law enforcement or consent to a search, then that simply means (as one officer insinuated here) he is setting himself up to later feign surprise and innocence. But, if the suspect were to be uncooperative or refuse to permit a search, then he must be hiding something, some would say. Interesting, indeed.
Next, after appellant authorized the officers to search the tractor and trailer, one walked his drug dog around the vehicle. The animal “hit” twice. The first occurred as it sniffed around a drain in the trailer. That drain was in the vicinity of the flour stored inside. The second “hit” occurred once the dog entered the trailer itself; it led to the discovery of the box hidden within the flour. No other contraband was discovered in the trailer or truck, though. Nor were drugs or drug paraphernalia found on appellant’s person. And, when asked, the officers disclosed that appellant did not appear to be under the influence of any illegal substance.
As previously mentioned, the cargo filled only a small portion of the trailer. This led one of the officers to wonder why appellant locked the cargo doors. He allegedly knew of instances where more sizeable amounts of cargo where left behind unlocked doors when being hauled around. Yet, the officer also opined that a truck “driver is responsible for the load.” And, another acknowledged that the doors may have been locked simply as a security measure to protect the cargo.
Next, the size of the lawful cargo and the distance being traveled (from North Carolina to California then back to North Carolina) caused an officer to wonder about the profitability of the trek, and he mentioned this to the jury. Yet, nowhere in the record do we find evidence that appellant’s pay was dependent upon or linked to the quantum of property hauled. Rather, it illustrates that he had leased the truck to another (Carlos Ramos of Wilson, N.C .) in return for receiving a certain income based upon miles driven. In short, he was paid by the mile, not the load, and no one contested this.
That appellant had originally been sent to retrieve cars also seemed unusual to the officers. This was so because the trailer was a refrigerated unit or “reefer,” and they purportedly were not designed to transport vehicles. Nonetheless, one officer conceded that he had “seen … in the past” reefers being used for such purposes. Moreover, neither officer addressed whether the unit being pulled by appellant was somehow modified to allow the transportation of motorized vehicles.
Next, the topic of appellant’s presence when the cargo was being loaded was broached. One of the officers attested that he “believe[d]” appellant told him he (appellant) was “present” during that time. The same officer later conceded to defense counsel that appellant never “indicated where he was when these were loaded .” The other officer commented, though, that because truck drivers were “responsible” for the cargo, they normally supervised its loading and signed the bills of lading. But, as previously mentioned, he also opined that drivers were not responsible for packing the commodities being shipped. So too did he acknowledge that a driver could simply back his trailer to the loading dock, have others load it, receive a “cash ticket,” and go “to the next place.” The latter likened to the method appellant indicated that he followed; again, he allegedly remained inside his truck’s sleeper while others placed the cargo in the trail
