Alonso Isrrael Roel v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ALONSO ISRRAEL ROEL, No. 08-19-00243-CR
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Appellant, Appeal from the
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v. Criminal District Court No. 1
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20180D05402)
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OPINION
Appellant Alonso Isrrael Roel was found guilty in a jury trial of possession of more than
four ounces, but less than five pounds, of marijuana. The central point of contention is whether
the State tied Appellant to marijuana found in a vehicle outside the hotel room he was occupying.
And a key piece of evidence to make that connection was a hotel check-in form where Appellant
identifies the vehicle as his. In this appeal, he contends (1) that the evidence was insufficient to
support the conviction, and (2) that trial court improperly admitted business records of the hotel
which included the check-in form because the State failed to disclose that evidence ten days prior
to trial.
We affirm the conviction for the following reasons.
I. BACKGROUND
A. Procedural Background
Important to understanding Appellant’s failure to disclose evidence claim, Appellant was
indicted twice. In June of 2017, the State indicted Appellant for possession of marijuana,
possession of cocaine, possession of methamphetamine, and possession of psilocybin. The case
was assigned to the Criminal District Court Number One for El Paso County, and the parties
engaged in typical pretrial discovery and preparations until the case was dismissed in October 2018
because it was being reindicted. The new indictment included three charges--possession of
marijuana, possession of cocaine, and possession of methylenedioxy. That case was assigned to
the same trial court that took judicial notice of the new and previous cause numbers. The State
filed, and the trial court granted, a motion to carry all documents over to the second case.
In the second case, a jury convicted Appellant on Count I, possession of marijuana over
four ounces, but less than five pounds. The jury found Appellant not guilty on Counts II and III
(possession of cocaine and MDMA). The trial court sentenced Appellant to three years in prison.
B. Factual Background1
Officer Pete Garay from the El Paso Police Department responded to a narcotics in progress
call at a Comfort Suites hotel. Officer Garay spoke with the hotel staff who reported that customers
complained of the smell of marijuana coming from a room rented to Appellant. The officer
smelled an odor of marijuana when he reached the floor where the room was located. He knocked
on the door, and when Appellant opened the door, the officer smelled a stronger odor of burnt
marijuana from inside the room. When asked about the odor of marijuana, Appellant admitted
1
Because the jury found Appellant not guilty on the possession of cocaine and MDMA, we focus primarily on the
facts pertaining to possession of marijuana.
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that he and his guests had been smoking marijuana, but that there was no more marijuana in the
room.
Appellant gave Officer Garay consent to enter the room. There, the officer observed four
individuals, two males including Appellant and two females, and he could see fresh marijuana on
the television stand. Appellant admitted to ownership of the marijuana on the television stand.
The females consented to a search of their purses, and the officer located cocaine in one of those
purses. When other officers arrived, they found narcotics under the bed where Appellant and the
other male had been sitting. None of the individuals took ownership of the other drugs found in
the room, which included cocaine, methamphetamine, mushrooms (later lab tested to be MDMA),
and marijuana. The officers arrested all four individuals.
One of the individuals, Morella Vela, testified at Appellant’s trial. Vela testified she and
the others were smoking weed, and she agreed there was cocaine in the room and the cocaine was
under the bed. She also testified that Appellant handled the marijuana in the room. Vela further
told the officers that Appellant’s vehicle was parked outside of the hotel. Officer Garay testified
that upon doing a pat-down search, he found car keys in Appellant’s pocket. A narcotics unit was
called in to further investigate a vehicle parked at the hotel. The car keys that were on Appellant’s
person were later given to the narcotics detective.
Detective Eric Garcia, who was then assigned to a narcotics unit, spoke with Officer Garay
and the two females in custody at the police station. Detective Garcia then went to the hotel
parking lot to investigate the suspected vehicle. He had obtained the car keys from the police
station. Upon approaching the vehicle, he smelled the odor of marijuana. Detective Garcia used
a flashlight and observed a package of marijuana in plain view on the driver’s side floor. When
he opened the vehicle, he found two bags of marijuana, which had a total weight of 4.4 ounces.
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The marijuana from the vehicle was admitted into evidence at trial, but the marijuana found
in the hotel room was, for reasons unrelated to this appeal, excluded from evidence. So the
possession of marijuana charge made against Appellant turns on the marijuana found in the
vehicle. In that regard, Detective Garcia testified that the vehicle was registered to a person sharing
Appellant’s same last name and address. Inside the vehicle, Detective Garcia also found a vehicle
insurance card, listing “Nicolas Roel” as the named insured. The address on the insurance card
matched Appellant’s address shown on his driver’s license. While the detective had no firsthand
knowledge that Appellant was seen with the vehicle, none of the other three individuals arrested
had the same last name matching the vehicle insurance.
And as we explain in more detail below, the State admitted into evidence the guest receipt
for the Comfort Suites room rented to Appellant, which includes a check-in form, with a
handwritten notation of the license plate number for the vehicle that the police later searched and
in which they found the marijuana.
II. ISSUE ONE: SUFFICIENCY OF EVIDENCE TO SUPPORT THE CONVICTION
Appellant first asserts that the State failed to show he had possession of the marijuana in
the vehicle because no one witnessed him driving the vehicle. Appellant further argues that the
State: (1) failed to show the keys from Appellant’s pocket were the same as the ones Detective
Garcia used to open the vehicle; (2) failed to test the vehicle for fingerprints; (3) failed to test the
bags of marijuana for fingerprints; and (4) failed to provide video surveillance from the hotel
showing Appellant was with the vehicle. Accordingly, Appellant argues the State did not prove
he possessed the marijuana. We disagree.
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A. Controlling Law
1. The Jackson analysis
The Fourteenth Amendment’s guarantee of due process requires that every conviction must
be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979);
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). In a legal sufficiency challenge, we
focus solely on whether the evidence, when viewed in the light most favorable to the verdict, would
permit any rational jury to find the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing legal insufficiency under
Jackson v. Virginia as the only standard for review of the evidence).
Applying that standard, we recognize that our system designates the jury as the sole arbiter
of the credibility and the weight attached to the testimony of each witness. Metcalf v. State, 597
S.W.3d 847, 855 (Tex.Crim.App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.
2014). Only the jury acts “to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772, 778
(Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 319. In doing so, the jury may choose to
believe or disbelieve that testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008).
The jury remains at liberty to believe “all, some, or none of a witness’s testimony.” Metcalf, 597
S.W.3d at 855. When the record supports conflicting inferences, we presume that the jury resolved
the conflicts in favor of the verdict, and we defer to that determination. Dobbs, 434 S.W.3d at
170; see also Jackson, 443 U.S. at 319.
We remain mindful that “[t]here is no higher burden of proof in any trial, criminal or civil,
and there is no higher standard of appellate review than the standard mandated by Jackson.”
Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). However, “[w]e are not to sit as a thirteenth
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juror reweighing the evidence or deciding whether we believe the evidence established the element
in contention beyond a reasonable doubt[.]” Blankenship v. State, 780 S.W.2d 198, 207
(Tex.Crim.App. 1988) (en banc). Instead, “we test the evidence to see if it is at least conclusive
enough for a reasonable factfinder to believe based on the evidence that the element is established
beyond a reasonable doubt.” Id., citing Jackson, 443 U.S. at 318.
2. Possession of a controlled substance
To support a conviction for possession of a controlled substance, the State must prove that
the accused (1) exercised control, management, or care over the substance; and (2) knew the matter
possessed was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); TEX.
HEALTH & SAFETY CODE ANN. §§ 481.121(a), (b)(3), 481.002. Texas law provides that “[a] person
acts knowingly, or with knowledge, with respect . . . to circumstances surrounding his conduct
when he is aware . . . that the circumstances exist.” TEX.PENAL CODE ANN. § 6.03(b). “A person
acts intentionally, or with intent, with respect . . . to a result of his conduct when it is his conscious
objective or desire to . . . cause the result.” Id. § 6.03(a).
While mere presence is insufficient to establish possession when the contraband is not in
the exclusive possession of the defendant, a fact finder may nonetheless infer that the defendant
knowingly or intentionally possessed the contraband if sufficient independent facts and
circumstances justify such an inference. See Tate v. State, 500 S.W.3d 410, 413-14
(Tex.Crim.App. 2016). In Evans v. State, the Court of Criminal Appeals recognized a non-
exhaustive list of factors that may indicate a link connecting the defendant to the knowing
possession of contraband. Evans, 202 S.W.3d at 162 n.12. The factors are:
(1) the defendant’s presence when a search is conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the accessibility
of the narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
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arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant owned
or had the right to possess the place where the drugs were found; (12) whether the
place where the drugs were found was enclosed; (13) whether the defendant was
found with a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt.
Id. The Court of Criminal Appeals indicated that, although these factors may guide a court’s
analysis, the ultimate inquiry is still a Jackson analysis. See Tate, 500 S.W.3d at 413-14.
B. Analysis
Viewing the evidence in the light most favorable to the verdict, the record reflects that a
rational jury could have found Appellant guilty, beyond a reasonable doubt, of possession of the
marijuana that was in the vehicle. See Tate, 500 S.W.3d at 417.
Not all of the Evans factors are implicated in this case, but those that are, point towards
guilt. The most relevant--“whether the defendant owned or had the right to possess the place where
the drugs were found”--cuts against Appellant’s case. Appellant, as the guest renting the hotel
room, signed his name at registration, and listed the vehicle license plate during sign-in. The
vehicle insurance found inside the vehicle showed the same last name and address as Appellant.
The vehicle was similarly registered to someone with Appellant’s last name and at his listed
address. No other individuals in the hotel room arrested that night had that same name. A witness
who was in the hotel room told officers that Appellant’s vehicle was parked in the hotel parking
lot. The arresting officer found a set of keys on Appellant’s person that were later given to a
narcotics detective who used them to open the vehicle. While Appellant challenges the chain of
possession of those keys, that is the sort of question a fact finder decides, and here there was a
sufficient chain of custody such that the jury could conclude the keys found on Appellant were the
same keys used to open the car. Aligned with this factor, the vehicle was enclosed and locked,
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which undermines the possibility that some stranger left the drugs there.
Another relevant Evans factor--whether the drugs were found in plain view--also works
against Appellant in two ways. First the drugs inside the vehicle were in plain view and the
detective smelled the odor of marijuana coming from the vehicle. Those facts suggests that the
person who controlled the vehicle would be cognizant of the drugs in the vehicle--and thus
knowingly possessed them. See Tate, 500 S.W.3d at 417. Second, Appellant took ownership of
the marijuana found in the hotel room, admitted smoking marijuana, and a witness identified
Appellant as the person handling the marijuana. While the marijuana in the room was not admitted
into evidence, the fact that Appellant admitted to possessing marijuana there (and admitting to
using marijuana), makes it more likely that he also possessed the marijuana found in a nearby
vehicle that was linked to Appellant. And the fact that the vehicle was near the hotel room rented
by Appellant satisfies another Evans factor: “the defendant’s proximity to and the accessibility of
the narcotic[.]” Evans, 202 S.W.3d at 162 n.12.
The number of affirmative links is not as important as the logical force of the direct and
circumstantial evidence. Id. at 162. In this case, a rational jury could infer that Appellant was the
owner-driver of the vehicle, thereby connecting him to the marijuana in the vehicle, and had
knowledge of the drugs in the vehicle that were in plain view.2 Taking evidence in the light most
favorable to the verdict and based on the Jackson analysis, we find that a rational juror could have
found Appellant guilty of possession of marijuana beyond a reasonable doubt.
We overrule Issue One.
III. ISSUE TWO: FAILURE TO TIMELY DISCLOSE DISCOVERY
In Issue Two, Appellant challenges the admissibility of the hotel registration form which
2
Appellant does not raise a challenge on whether he knew the drug was marijuana.
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we have identified as one of the pieces of evidence linking Appellant to the vehicle. The Comfort
Suites receipt and registration form was admitted through a business records affidavit that was
filed in the case after the first indictment. The actual Comfort Suites documents were not attached
to the Notice of Intent pleading filed with the district clerk, but at the time, they were available for
Appellant’s counsel to view through the “portal” which is an on-line method by which defense
attorneys can see the district attorney’s file.3 When the case was reindicted, the trial court carried
forward all the pleadings into the new case. But apparently the hotel receipt and registration form
were not a part of the portal available when the new case was set up and the portal access to the
old case ended when the old case was dismissed.
Appellant premises his second issue on the failure of the State to disclose the Comfort
Suites documents. He specifically contends that the trial court abused its discretion by admitting
the Comfort Suites documents because the documents were only first presented at trial. He claims
that they should have been provided ten days prior to trial, and they were not uploaded to the online
portal.4 We disagree.
The relevant sequence of events is as follows:
• June 13, 2017--The original indictment charged Appellant with possession of marijuana,
possession of cocaine, possession of methamphetamine, and possession of psilocybin.
• July 3, 2017--The trial court entered a pretrial discovery order, which was filed in the
original cause number.
• July 12, 2017--Defense counsel entered as attorney of record for Appellant.
3
The 34th Judicial District Attorney’s Office employs an online portal allowing enrolled defense attorneys to have
electronic access to the State’s file on their clients, subject to certain terms and conditions. See generally 34th Judicial
Dist. Attorney’s Office, Conditions of District Attorney Portal Use by Defense Attorneys, El Paso Cnty.,
http://www.epcounty.com/da/documents/caseportalterms.pdf (last visited May 27, 2021 (outlining system use
policy)).
4
There are no discovery issues raised under Brady or Article 39.14 of the Texas Code of Criminal Procedure.
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• October 23, 2018--The case was reindicted into the current cause number and charged
Appellant with possession of marijuana, possession of cocaine, and possession of
methamphetamine. The indictment noted that each offense charged had previously been
indicted under the original cause number.
• October 29, 2018--In the original cause number, the State filed a “Notice of Filing Self-
Authenticated Business Records” which included the business records affidavit of the
custodian of records from the Comfort Suites hotel. The notice stated that the three
pages of business records “ha[ve] been made available to defense counsel[.]”
• October 31, 2018--The trial court signed an order granting the State’s motion to dismiss
the original indictment for the reason that the case had been refiled and reindicted under
a new cause number.
• January 14, 2019--The State filed a motion to carry over all filings, motions, notices,
and any other documents filed under the previous cause number into the current one,
which the trial court grants the same day.
When the State moved to admit the Comfort Suites documents, Appellant objected that the
State failed to make the document available to the defense ten days in advance of trial and claimed
it violates Appellant’s right to a fair trial.5 The trial court overruled the objection and admitted the
evidence.
A. Controlling Law
1. Standard of review
An appellate court reviews the trial court’s decision to admit or exclude evidence under an
abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993). A reviewing
court must give total deference to a trial court’s findings of fact based on credibility and demeanor.
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When the trial court does not enter
5
Appellant also argued below that the business records had handwriting on them that raised reliability concerns, but
that argument has not been brought forward on appeal. Nor does Appellant’s brief advance on appeal the due process
argument argued to the trial court.
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findings of fact, the appellate court views evidence in the light most favorable to the trial court’s
ruling and assumes the findings support the rulings so long as the ruling is supported by the record.
Francis v. State, 428 S.W.3d 850, 855 (Tex.Crim.App. 2014). Reviewing courts should uphold
evidentiary rulings unless the decision was not within a “zone of reasonable disagreement[.]”
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (opin. on reh’g).
2. Willful conduct
“Evidence willfully withheld from disclosure under a discovery order should be excluded
from evidence.” Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006), quoting Hollowell
v. State, 571 S.W.2d 179, 180 (Tex.Crim.App. 1978). Yet for willful inaction, the prosecutor must
have intended to violate the court’s order or harm the defendant. Id. at 726-27, citing State v.
LaRue, 152 S.W.3d 95, 97 (Tex.Crim.App. 2004); see also Francis v. State, 428 S.W.3d 850, 855
(Tex.Crim.App. 2014) (standing alone, a prosecutor’s extreme negligence or recklessness in
failing to comply with a discovery order does not justify excluding relevant evidence). Courts
may determine whether the State acted willfully by two factors: was the failure to disclose
evidence done in bad faith; and can the defendant reasonably anticipate that evidence? State v.
Sanchez, No. 08-13-00010-CR, 2014 WL 2090546, at *11 (Tex.App.--El Paso May 16, 2014, pet.
ref’d) (not designated for publication). The validity of the prosecutor’s explanation is relevant in
determining intent to willfully disobey the discovery order. Oprean, 201 S.W.3d at 728.
B. Analysis
Appellant contends that because the business record was not on the online portal, the trial
court’s decision to admit the records was outside the “zone of reasonable disagreement” and the
documents were extremely harmful. We disagree.
First, there is no dispute that the Notice of Intent to Admit Business Records was timely
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filed in the first case and carried over to the second case. It was emailed to defense counsel’s
office. And during the pendency of the first case, defense counsel could have found the actual
business records on the portal. Second, the trial court heard from the prosecutor who explained
the situation, and contended that he specifically informed defense counsel of the nature of the
documents:
[PROSECUTOR]: So, Your Honor, I have told this defense attorney on numerous
occasions, probably approximately ten times, that we have a sheet now -- unlike
the other case we didn’t have the sheet -- but we have a sheet now where the
defendant -- when he was signed into the room it shows that he put his license plate,
his name and also the registration for the hotel room. I said I had filed that into the
case in the 2017 case. So that was actually filed, Your Honor, in 10-29 of 2018
when the defendant had access to this portal account, Your Honor. And then the
State filed a motion to carry over and that motion to carry over was signed on
January 15th of 2019. So, again, defense had . . . notice of this document
beforehand. And all of the documents from the 2017 case all carried over to the
2018 case. And if defense had an issue with it, and they said they were ready, Your
Honor -- if they said they didn’t have access that or they didn’t have that document,
the State would have actually given them another copy -- a paper copy -- if they
wanted to. But, again, all these motions have been carried over from the 2017 case.
Defense counsel did not dispute that claim, and relied instead on their absence from the file
available on the portal in the second case:
[DEFENSE COUNSEL]: And taking the State’s word that it was made available I
had no concerns. However, upon seeing the portal, it’s to my avail, Your Honor, it
was not there. Therefore, we haven’t had an opportunity to inspect it as is required.
The trial judge considering these arguments, concluded that the State met its obligation, even if it
did so “minimally”:
THE COURT: And you’re saying that you didn’t receive notice of these
documents. But there is, prior to the 2017 cause number, this motion for notice of
filing of self-authenticating business records is filed. Then once it was dismissed
and indicted in January there was also a motion to carry over all of the motions.
And I’m not talking about the portal which the DA’s office has control of. I’m
talking about through Odyssey.
Now, while I think that what the DA’s office should have done is uploaded it to the
2018 cause number especially if they were going to offer it as an exhibit. I think
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that minimally they did comply with giving you notice. One, with filing the
business record, and then in the 2017 cause number -- then additionally in January
with filing the motion to carry over all of the motions from the 2017.
Would I have preferred that they uploaded any exhibits that they were going to
introduce into evidence in the 2018 to make it easier for you to review? Yes. But
I don’t think that it rises to the occasion where it would be that you didn’t have
notice and that you wouldn’t know of its existence if you had looked at what was
filed.
The record does not reflect that Appellant ever requested to see the business records and
that the State denied Appellant access to them. The record does not show that the prosecutor was
aware of the glitch in the portal system because of the two cases, and the record is undeveloped as
to why the documents were not carried over in the portal system between the first and second
cases. But the record does establish that the State provided notice of the existence of the
documentation (both through its court filings, and oral discussions between counsel), and that the
document itself was at one time uploaded to the online portal. Based on this record we find no
evidence that the trial court abused its discretion in failing to find the State “willfully” withheld
the documents as that term is defined by the Texas Court of Criminal Appeals.
Moreover, Appellant’s specific contention that the State should have provided copies of
the documents ten days prior to trial also fails. The relevant discovery order does not contain a
ten-day deadline to disclose this kind of evidence, but rather requires a “mutually agreed to time”
for the exchange of evidence, and failing that, a Court imposed deadline. The record does not
reflect that there was such an evidence exchange at which the State willfully failed to disclose its
physical evidence.
Accordingly, the trial court did not abuse its discretion in admitting this evidence. Because
we find no error in the admission of the evidence, we decline to address harm. Appellant’s Issue
Two is overruled.
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IV. CONCLUSION
Having overruled all of Appellant’s issues on appeal, we affirm the trial court’s judgment
adjudicating guilt.
JEFF ALLEY, Justice
May 28, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
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