Raymond Soliz v. State ( 2019 )

NO. 12-18-00040-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RAYMOND SOLIZ, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Raymond Soliz appeals his conviction for manufacture or delivery of a controlled
substance. In one issue, he argues that the evidence is insufficient to support his conviction. We
affirm.
BACKGROUND
On October 20, 2016, Appellant was alone and driving a vehicle on Loop 256 in Anderson
County, Texas. Law enforcement stopped Appellant for having expired buyer’s tags and later
arrested him for driving while license suspended. During a routine vehicle inventory, law
enforcement located approximately forty grams of methamphetamine. The State charged
Appellant by indictment with the offense of manufacture or delivery of a controlled substance in
penalty group one in an amount of four to two hundred grams, by possessing the methamphetamine
with an intent to deliver. He pleaded “not guilty” and the case proceeded to a jury trial.
At trial, Josh Palma, an Anderson County Sheriff’s Deputy, testified that he attempted to
stop Appellant because Appellant’s vehicle had expired buyer’s tags. After activating his lights
and sirens, Palma followed Appellant for approximately one mile, passing several suitable
stopping points, before Appellant stopped. Palma observed Appellant shifting around in the
vehicle prior to pulling over.
Palma approached Appellant and asked for his driver’s license and insurance. Palma
noticed Appellant’s hands visibly shaking as if he were nervous. Appellant did not have his
driver’s license or proof of insurance. Appellant told Palma that he recently purchased the vehicle,
and produced the title. Palma noted that the title was not in Appellant’s name, nor was the
registration or vehicle identification number.
Dispatch advised Palma that Appellant’s driver’s license was suspended, and he placed
Appellant under arrest. Palma’s sergeant, Michael Skinner, arrived on scene and performed an
inventory of the vehicle, which was an older model Oldsmobile Cutlass. Skinner found four clear
plastic bags scattered on the passenger side floorboard. Inside the center console, Skinner found
a collapsible baton and a pocket knife, which had a crystal like substance on the blade. Skinner
noticed several holes in the dashboard of the vehicle. He then noticed a set of digital scales,
covered in a crystal like substance, visibly protruding from the area on the dashboard where the
built in ashtray should have been located. Skinner located a plastic bag containing pills, later
determined to be a prescription muscle relaxant called Tizanidine Hydrochloride, wedged into the
air vents on the driver’s side of the vehicle. Skinner discovered approximately forty grams of
methamphetamine in a plastic bag in a compartment hidden behind the vehicle’s after market radio.
Skinner testified that forty grams of methamphetamine is a large amount, inconsistent with
personal use. He testified that, in the narcotics industry, plastic bags are often used to portion out
drugs for sale. He further testified that knives and digital scales are used to portion and weigh
amounts of drugs to determine the amount and price for sale. Skinner stated that instruments used
for cutting the drugs will often have crystal like substances present on them. Skinner told the jury
that weapons, such as the baton he found in Appellant’s console, are commonly used by drug
dealers for protection. Skinner also testified that deputies at the jail disassembled Appellant’s cell
phone, and found a crystal like residue on the inside of the back part of the phone. Jailers also
located approximately $540 in cash in Appellant’s pants pocket. Skinner opined that $540 is an
unusually large amount of cash for an individual to carry on his person.
At the conclusion of trial, the jury found Appellant “guilty” and sentenced him to
imprisonment for seventy five years. This appeal followed.
2
SUFFICIENCY OF THE EVIDENCE
In his sole issue, Appellant argues that the evidence is insufficient to support his conviction.
Specifically, he argues that the evidence does not establish that he acted knowingly.
Standard of Review and Applicable Law
When determining if evidence is sufficient to sustain a conviction, the court must apply the
Jackson v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App.
2010). This standard requires the court to determine whether, considering all the evidence in the
light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); Brooks, 323 S.W.3d at 899. In order to consider the evidence in the light most favorable
to the verdict, we must defer to the jury’s credibility and weight determinations, because the jury
is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. Brooks,
323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. This standard recognizes “the
responsibility of the trier of fact fairly 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,
99 S. Ct. at 2789; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The
fact finder is entitled to judge the credibility of the witnesses, and can choose to believe all, some,
or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). When
conflicting evidence is presented, we must resolve those conflicts in favor of the verdict and defer
to the fact finder’s resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. We may not substitute
our own judgment for that of the fact finder. See id., 443 U.S. at 319, 99 S. Ct. at 2789; Thornton
v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000). Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor and can be alone sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).
A person commits the offense of manufacture or delivery of a controlled substance when
he knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance in
penalty group one. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017). To establish
possession the State must prove that the accused (1) exercised actual care, custody, control or
management over the substance; and (2) was conscious of his connection with it and knew what it
3
was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Evans v. State, 202 S.W.3d
158, 161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002 (38)
(West 2017). Evidence which links the accused to the contraband suffices for proof that he
knowingly possessed the substance. Brown, 911 S.W.2d at 747. The evidence may be direct or
circumstantial, but must establish the accused’s connection with the substance was more than just
fortuitous. Id. However, the evidence need not exclude every other outstanding reasonable
hypothesis except the defendant’s guilt. Id. There is no set formula of facts necessary to support
an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref'd). The focus is not on the number of facts linking the accused to the
drugs, but on the logical force they have in establishing the offense. Evans, 202 S.W.3d at 162.
Intent to deliver may be established by circumstantial evidence. Rhodes v. State, 913
S.W.2d 242, 251 (Tex. App.—Fort Worth 1995), aff’d, 945 S.W.2d 115 (Tex. Crim. App. 1997).
Intent to deliver may be inferred by the quantity of drugs possessed or the manner in which the
drugs are packaged. Id. Other factors considered include the nature of the location where the
defendant was arrested, the presence of drug paraphernalia for use or sale, the defendant’s
possession of a large amount of cash, and the defendant’s status as a drug user. See Brown v.
State, 243 S.W.3d 141, 150 (Tex. App.—Eastland 2007, pet. ref’d).
Analysis
Appellant argues that his “mere presence” at the scene of the offense is insufficient to
sustain his conviction. In support of Appellant’s argument, he points to a myriad of circumstances
demonstrated by the trial evidence:
1. The methamphetamine was found in a hidden compartment behind the radio, and not in plain view,
making it somewhat inaccessible.
2. No evidence was offered at trial as to whether Appellant had a prescription for the Tizanidine
Hydrochloride.
3. Appellant made no incriminating statements.
4. Palma did not characterize Appellant’s movements in the car prior to pulling over as “furtive in nature.”
5. Appellant did not engage law enforcement in a high speed chase or flee the scene after he pulled over.
6. There was no odor of contraband emitting from the vehicle.
7. Law enforcement did not scientifically test the crystal like substance found on the knife, digital scales,
and cell phone.
8. Appellant was not under the influence of drugs.
9. Appellant had recently purchased the vehicle.
10. Five hundred and forty dollars is not a “large amount of cash.”
4
The knowledge element of the crime of possession of a controlled substance is subjective
and usually must be inferred in the absence of an admission by the accused. Grant v. State, 989
S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.] 1999, no pet.) Mere presence of a defendant
in the vicinity of drugs will not establish knowing possession. See Oaks v. State, 642 S.W.2d 174,
177 (Tex. Crim. App. 1982).
Here, the fact that Appellant was the sole occupant of the vehicle in which the drugs were
found serves as evidence that he exercised control over that vehicle. See Grant, 989 S.W.2d at
433. Knowledge can be inferred from control over the vehicle in which contraband is concealed. 1
Id. (citing United States v. Richardson, 848 F.2d 509, 513 (5th Cir.1988)). However, when
contraband is found in hidden compartments of a vehicle, reliance should not be placed solely on
control of the vehicle to show knowledge, and we must look to other factors to decide if the
evidence establishes knowledge. See Grant, 989 S.W.2d at 434.
In this case, in addition to Appellant being the driver, sole occupant, and admitted owner
of the vehicle, several other factors support the jury’s verdict. Appellant did not pull over when
Palma first activated his lights and sirens, despite having several opportunities to do so. In
addition, Palma noticed Appellant shifting around in the vehicle prior to pulling over and, during
the stop, Appellant appeared nervous and was visibly shaking. The plastic bags and digital scales,
items commonly used for the sale of drugs, were found in plain view in the vehicle. The knife,
cell phone, and scales were covered in a crystal like substance, which, while not confirmed to be
methamphetamine, appeared visually similar to the methamphetamine found behind the radio.
While the methamphetamine was not in plain view, it was hidden in a compartment easily
accessible to Appellant, as evidenced by Skinner’s relative ease in retrieving the drugs by simply
removing the after market radio from the dashboard. Finally, Appellant was found to be in
possession of $540, a substantial amount of cash. These facts link Appellant to the
methamphetamine found in the vehicle, and serve as circumstantial evidence of his intent to
deliver. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.—Tyler 2006, no pet.) (discussing
1
In Brown, the Court of Criminal Appeals affirmed the Fort Worth Court of Appeals’s holding that the
evidence was sufficient where the marijuana was found in the trunk of the vehicle the defendant was driving. See
Brown v. State, 878 S.W.2d 695 (Tex. App.—Fort Worth), aff'd 911 S.W.2d 744. The Fort Worth Court held that
control over the marijuana was established because the defendant was the driver and sole occupant of the vehicle
containing the drug. His knowledge that the marijuana was in the trunk could be inferred from his sole occupancy of
the vehicle and his display of a weapon just prior to his arrest. See Brown, 878 S.W.2d at 700. Further, the Court of
Appeals held his knowledge of the illegal nature of the marijuana could be inferred from the careful packaging and
hiding of the material in the trunk of the car. Id.
5
non-exclusive list of factors that may be considered when evaluating links); see also Rhoades, 913
S.W.2d at 251; Brown, 243 S.W.3d at 150.
Appellant’s argument essentially urges us to hold that the evidence must exclude every
reasonable hypothesis except his guilt, which the law does not require. See Brown, 911 S.W.2d
at 747. The isolated facts that Appellant points to were presented to the jury, and resolved in favor
of his guilt. See Brooks, 323 S.W.3d at 899; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789,
2793. The logical force of all of the evidence presented to the jury supports its verdict that
Appellant knowingly possessed methamphetamine with intent to deliver. See Evans, 202 S.W.3d
at 162. Therefore, viewing all the evidence in the light most favorable to the verdict, we conclude
that the jury was rationally justified in finding Appellant’s guilt beyond a reasonable doubt. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Because the
evidence is sufficient to support Appellant’s conviction, we overrule Appellant’s sole issue.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 12, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
6
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 12, 2019
NO. 12-18-00040-CR
RAYMOND SOLIZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-17-33072)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.