Lee Edward Booten AKA Lee Edward Turner AKA Quick v. State ( 2003 )

NO. 07-01-0306-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

PANEL B

AUGUST 13, 2003 ______________________________



LEE EDWARD BOOTEN, AKA LEE EDWARD TURNER AKA QUICK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 155^TH DISTRICT COURT OF WALLER COUNTY;

NO. 00-07-10,291; HONORABLE MARY BACON, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Lee Edward Booten appeals from his conviction for delivery of a controlled substance. He urges that the evidence is factually insufficient to support the conviction. We affirm.

On April 12, 2000, Officer Michael Chaney, a reserve officer with the City of Brookshire Police Department, and Officer Lisa Gartman, met Pam Collins at a motel in Hempstead, Texas. Gartman had purchased drugs from Collins earlier in the day.

Chaney and Gartman, both working undercover, told Collins that they wanted to buy some crack cocaine. Collins told Chaney and Gartman that she knew where to buy some crack, and Collins and Chaney left the motel together. Collins directed Chaney to drive to appellant's address. When they arrived, Chaney gave Collins $100 and Collins went up to appellant in the driveway of the residence. Chaney testified that he watched from his vehicle while Collins handed money to appellant and appellant handed something back to Collins. According to Chaney, Collins then returned to the car, handed the crack cocaine to him, and asked for some in exchange for setting up the buy. Chaney refused to give Collins any of the cocaine, but Gartman gave her $20 when Chaney and Collins returned to the motel.

Collins testified that after Chaney dropped her off at appellant's residence, he left in the vehicle. According to Collins, she and appellant went inside the garage and behind a car where she exchanged money for cocaine. She then returned to the car in which she and Chaney drove to appellant's house, gave the cocaine to Chaney, asked for some of the drugs, and her request was refused by Chaney. She agreed with Chaney's testimony that she and Chaney then returned to the motel where Gartman gave her $20. She was later indicted for the transaction, pled guilty to delivery of a controlled substance, and was serving time for her conviction at the time of appellant's trial.

Appellant was indicted in Waller County for delivery of a controlled substance in the amount of one gram or more but less than four grams. He was convicted and sentenced to ten years incarceration.

Appellant appeals the conviction via one issue which urges factual insufficiency of the evidence. He urges that the evidence is uncontroverted that Collins was not searched before or after the alleged transaction with appellant and the State failed to introduce corroborating evidence connecting appellant to an offense independent of the testimony of Collins, who was an accomplice witness. He concludes first that absent independent corroborating evidence, he cannot be convicted on the testimony of Collins; and second, that the State has not overcome his alternative reasonable hypothesis presented by the proof that Collins was not searched before the alleged transaction and might have been in possession of the cocaine before she met appellant.

The State's response is twofold. First, the State asserts that Chaney's testimony as to how the transaction occurred is independent evidence corroborating Collins' testimony. Second, the State cites Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991) as overruling the "alternative reasonable hypothesis" analytical construct for testing sufficiency of the evidence.

Review of the evidence in a criminal case for factual sufficiency to support a conviction entails a neutral review of all the evidence, both for and against the finding. The evidence is factually insufficient if such a review demonstrates that (1) the proof of guilt, standing alone, is too weak to support a finding of guilt, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When the verdict is in favor of the party with the burden of proof, as in this matter, the verdict and judgment may only be set aside for factual insufficiency if the entire record shows that evidence supporting the jury's finding is so weak as to be clearly wrong and manifestly unjust. Id. It is within the province of the jury to consider the demeanor and credibility of the witnesses in weighing conflicting testimony. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). Unless the record clearly reveals that a different result is appropriate, an appellate court must defer to the fact-finder's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, which is primarily a determination to be made by observation of the witnesses giving the testimony. See Johnson, 23 S.W.3d at 8.

The State and appellant agree, and the jury was charged, that Collins was an accomplice witness. See Tex. Crim. Proc. Code Ann. art. 38.14 (Vernon 1981). As such, her testimony is not sufficient evidence for conviction unless it is corroborated. If, after eliminating the accomplice witness' testimony, the remaining evidence tends to connect the accused with commission of the offense, then the evidence is sufficient corroboration. See McDuff v. State, 943 S.W.2d 517, 521 (Tex.App.-Austin 1997, pet.ref'd).

The State points to Officer Chaney's testimony as corroboration evidence. Chaney testified that he watched from an automobile as Collins and appellant conducted a transaction in which Collins handed money to appellant and appellant handed something to Collins. Collins then returned to the car where Chaney was waiting and handed crack cocaine to Chaney.

Chaney's testimony differed from that of Collins as to whether he drove off after dropping Collins off at appellant's house, or whether he stayed and watched the transaction. The conflict was for the jury to resolve, however. We respect the jurors' decision. See Cain, 958 S.W.2d at 408-09.

Chaney's testimony was evidence tending to connect appellant with the transaction. It was sufficient to corroborate Collins' accomplice witness testimony. See McDuff, 943 S.W.2d at 521-23. And, a decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. See Cain, 958 S.W.2d at 410.

As to appellant's assertion that the State's evidence did not overcome the alternative reasonable hypothesis presented by the evidence, we note that the Court of Criminal Appeals rejected the reasonable alternative hypothesis construct as a measure of legal sufficiency in circumstantial evidence cases. See Geesa, 820 S.W.2d at 161. The Court has not rejected the construct in factual sufficiency analyses. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). But, the construct is not determinative of the factual sufficiency issue. It is only a factor to be considered. Id. When we consider such factor, we defer to the jury's choice between competing theories which are supported by evidence. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). The existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. See Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.--Dallas 1998, no pet.).

The jury resolved the issues of credibility in favor of the State's position, and against appellant's construct urging that Collins brought the crack cocaine with her to the meeting with appellant. Such resolution does not render the evidence factually insufficient. We conclude that the proof of guilt, standing alone, is not too weak to support a finding of guilt, nor that the proof of guilt is greatly outweighed by contrary proof.

The evidence is factually sufficient to support the verdict. See Johnson, 23 S.W.3d at 11. Appellant's sole issue is overruled. The judgment is affirmed.

Phil Johnson

Chief Justice

Do not publish.

ing a large amount of currency in their luggage, which could be robbed or lost);\ United States v. One Lot of U.S. Currency ($14,665), 33 F.Supp.2d 47, 55 (D. Mass.\ 1998)(noting that appellant’s nervousness during interaction with law enforcement officers\ “is not an unreasonable response, regardless of the source and intended use of the\ currency”).

\ ' var WPFootnote11 = '

United States v. $191,910.00 in United States Currency, 16 F.3d 1051, 1072 (9^th\ Cir. 1994)(observing that discrepancies in claimant’s story raised “a suspicion that [he] was\ involved in illegal activities, but not probable cause”).

\ ' var WPFootnote12 = '

Although digital scales may be classified as “drug paraphernalia;” Hargrove v.\ State, 211 S.W.3d 379, 386 (Tex.App.–San Antonio 2006, pet. ref’d), cert. denied, ___\ U.S. ___, 28 S.Ct. 134, 169 L.Ed.2d 93 (2007), their mere presence supplies no nexus\ between Appellant’s $17,620 and a drug-related criminal activity. See generally United\ States v. $38,600.00 in U.S. Currency, 784 F.2d 694, 698-99 (5^th Cir. 1986). This is\ particularly so where the State presented no evidence of the presence of drugs in any\ amount on the scales.

\ ' var WPFootnote13 = '

“[I]t is customary for people to carry cash, especially large amounts of cash,\ ‘concealed.’” $252,300.00 in U.S. Currency, 484 F.3d at 1274; $10,700 in U.S. Currency,\ 258 F.3d at 233; United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048,\ 1055 n.8 (1^st Cir. 1997) superceded by statute on other grounds as recognized in United\ States v. Lopez-Burgos, 435 F.3d 1, 2 (1^st Cir. 2006).

\ ' var WPFootnote14 = '

That the money in this case was not wrapped in such a fashion as to avoid\ detection by narcotics dogs or concealed in a compartment within the vehicle renders any\ connection to a drug-related felony speculative at best. See e.g. United States v.\ $30,060.00 in U.S. Currency, 39 F.3d 1039, 1044 (9^th Cir. 1994) (rejecting government’s\ contention that drug dealers carry their money in plastic bags). Cash wrapped in plastic\ wrap or fabric softener, which is often used to avoid detection by trained drug-sniffing dogs,\ is some evidence of nexus to the drug trade. See $252,300.00 in U.S. Currency, 484 F.3d\ at 1275 (stating fact that a large amount of currency “bundled in stacks held by rubber\ bands and wrapped in cellophane. . . must be given significant probative value”); United\ States v. $84,615 in U.S. Currency, 379 F.3d 496, 502 (8^th Cir. 2004) (noting that vacuum-sealing is a “common ploy to mask odors such as might be detected by dog searches”);\ United States v. $242,484.00, 389 F.3d 1149, 1162 (11^th Cir. 2004) (wrapping cash in\ cellophane-type material is a technique known to be used by drug dealers to prevent\ discovery by drug-sniffing dogs); United States v. $42,500.00 in U.S. Currency, 283 F.3d\ 977, 982 (9^th Cir. 2002) (“[C]ellophane, which is largely impermeable to gas, is commonly\ used to conceal the smell of drugs and avoid detection by drug dogs.”); United States v.\ $129,727.00 in U.S. Currency, 129 F.3d 486, 491 (9^th Cir. 1997) (discussing nexus\ between use of plastic wrap and fabric softener in packaging and drug activity).

\ ' var WPFootnote15 = '

Possession of a large sum of money is not illegal in and of itself. $27,920.00 in\ U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex.App.–Texarkana 2000, pet. denied). \ $242,484.00 in U.S. Currency, 389 F.3d at 1161 (quantity of cash alone insufficient to\ connect it to illegal drug transactions); United States v. $191,910.00 in U.S. Currency, 16\ F.3d 1051, 1072 (9^th Cir. 1994)(any amount of money, standing alone, would probably be\ insufficient to establish probable cause); United States v. $67,220.00 in U.S. Currency, 957\ F.2d 280, 285 (6^th Cir. 1992)(no court has yet held that the presence of a large sum of cash\ is sufficient, standing alone, to establish probable cause).

\ ' var WPFootnote16 = '

$10,700 in U.S. Currency, 258 F.3d at 232-33 (currency rubber-banded in large\ bundles and concealed in baggage does not support an inference of drug trafficking under\ the probable cause standard).

\ ' var WPFootnote17 = '

The State asserts Appellant’s behavior was suspicious because he repeatedly\ stated there were no drugs in the car prior to any mention of drugs by Esqueda. In fact,\ Esqueda first mentioned drugs while he and Appellant were in his patrol car prior to the\ search when he asked Appellant whether his car contained grenades or narcotics such as\ marihuana or cocaine.

\ ' var WPFootnote18 = '

See fn. 11.

\ ' var WPFootnote19 = '

A positive alert by a drug detection dog, standing alone, does not constitute\ evidence that money was used in connection with a drug deal. $7,058.84 in U.S. Currency\ v. State, 30 S.W.3d 580, 588 (Tex.App.–Texarkana 2000, no pet.); $80,631.00 v. State,\ 861 S.W.2d 10, 12 (Tex.App.–Houston [14^th Dist.] 1993, writ denied). Although federal\ circuit courts recognize “that a positive alert by a drug detection dog is, in the very least,\ strong proof of probable cause”; United States v. Outlaw, 134 F.Supp.2d 807, 812 (W.D.\ Tex. 2001), aff’d, 319 F.3d 701 (5^th Cir. 2003), the evidentiary value of such an alert is\ being questioned because the spread of trace amounts of drugs in the nation’s currency\ supply increases the likelihood of false alerts. Id. at 813. See United States v. $506,231\ in U.S. Currency, 125 F.3d 442, 453 (7^th Cir. 1997)(refusing “to take seriously the evidence\ of post-seizure dog sniff”); United States v. $49,576.00 in U.S. Currency, 116 F.3d 425,\ 427 (9^th Cir. 1997) (positive alert entitled to little weight); Muhammed v. DEA, 92 F.3d 648,\ 653 (8^th Cir. 1996) (discounting government’s argument that dog alert constituted probable\ cause supporting administrative forfeiture due to high percentage of currency contaminated\ with drug residue); United States v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6^th Cir.\ 1994)(evidentiary value of the narcotic dog’s alert is minimal because it is well established\ that an extremely high percentage of all cash in circulation is contaminated with drug-residue sufficient to alert a trained dog); $80,760.00, 781 F.Supp. at 472 (“[R]ecitation of\ the profile elements and the alert of a narcotics detection dog, without more, does not\ establish probable cause to forfeit”).

\ ' var WPFootnote20 = '

See fn. 19.

\ ' var WPFootnote21 = '

A positive alert to the exterior surfaces of two pieces of luggage in the trunk of\ Appellant’s rental car does not rise to the level of credible evidence that the currency had\ been in close proximity to narcotics at any point in time. See $136,205.00 (Johnson) v.\ State, 848 S.W.2d 888, 891 (Tex.App.–Houston [14^th Dist.] 1993, no writ)(despite evidence\ of marihuana, drug paraphernalia, and a large amount of cash at residence, positive alert\ to safety deposit box at bank was insufficient to prove by a preponderance of evidence that\ deposit box funds were connected to marihuana confiscated at residence).

\ ' var WPFootnote22 = '

The State asserts that the narcotics dog alerted to the money when, in fact,\ Trooper Rocha testified the dog alerted on the medium and large pieces of luggage only. \ There is no evidence indicating that the currency alone was removed from the luggage and\ alerted to in a controlled area or ever tested for the presence of drug residue.

\ ' var WPFootnote23 = '

Evidence that a defendant had the means to commit an offense is not evidence\ that he committed that offense. See U.S. v. $38,600.00, 39 F.3d 1039, 1044 (9^th Cir. 1994)\ (such evidence not credible, speculative).

\ ' var WPFootnote24 = '

In the Fourth Amendment context, a drug courier profile can, at most, provide\ grounds for reasonable suspicion, it cannot establish probable cause. See, e.g. United\ States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586-87, 104 L.Ed.2d 1 (1989).        
\

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NO. 07-06-0420-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 14, 2008

______________________________

DAVID DESCHENES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 223^RD DISTRICT COURT OF GRAY COUNTY;

NO. 6804; HONORABLE LEE WATERS, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

          Appellant, David Deschenes, was convicted by a jury of money laundering in violation of § 34.02(a)(1) of the Texas Penal Code and sentenced to ten years confinement, suspended for ten years, and a $10,000 fine. Appellant contends: (1) the evidence at trial was legally insufficient to support his conviction; (2) the evidence at trial was factually insufficient to support his conviction; and (3) the trial court erred in denying his motion to suppress evidence. We reverse his conviction and render judgment of acquittal.

Background

I. Appellant’s Arrest  

          On January 22, 2002, DPS Trooper Oscar Esqueda stopped Appellant for speeding on Interstate 40 in Gray County. Esqueda approached Appellant’s car on the passenger side to avoid passing traffic, and Appellant opened the passenger car door to speak with him. Esqueda observed empty beverage containers and fast food wrappers strewn on the car’s floorboard. After Appellant produced his driver’s license, Esqueda informed him that he was speeding, asked him to get out of the vehicle, and sit in his patrol car.

           In the patrol car, Esqueda continued to ask Appellant questions. Appellant told him that his car had been rented by his father and that he was traveling from Connecticut to San Diego to visit an uncle living on a naval base. Esqueda named several naval bases in the San Diego area and Appellant was unsure of the specific base where his uncle lived. Esqueda became suspicious because Appellant appeared defensive, nervous, and unsure of the exact location of his ultimate destination. He was also suspicious because Appellant was traveling east on I-40, a route used by drug smugglers to move drugs from the west coast to the east coast and cash from the east coast to the west coast. In his experience, smugglers typically did not know exactly where they were going and it appeared Appellant was driving straight through because the car’s interior had a “lived-in” look.

          Esqueda then asked Appellant whether he had any weapons in his car, grenades, or narcotics such as marihuana or cocaine. Appellant looked at his car and answered in the negative. Esqueda’s suspicions were further heightened when Appellant looked at his car when he answered rather than maintaining eye contact. Esqueda also asked whether Appellant was carrying any large sums of money. Appellant indicated he was not and responded he had eighty dollars and several credit cards on his person and intended to fund his trip using a debit card. Esqueda observed Appellant’s nervous behavior appeared to increase as the traffic stop progressed. He further testified that the typical motoring public became less nervous as a stop progressed and things were explained to them. In his opinion, a person involved in some type of criminal activity remains nervous, or becomes more so, the longer there is contact.

          Esqueda issued a warning to Appellant. While Appellant was signing the warning, Esqueda asked Appellant if he could search his car and Appellant consented. During the search, Esqueda again observed that Appellant’s nervousness escalated. Esqueda found nothing in the passenger side of the vehicle or passenger compartment and found no evidence of drugs or contraband in the car. Esqueda then took the keys from the ignition and went back to search the trunk.

          In the trunk, Esqueda observed three pieces of luggage–a large, tan suitcase, a medium, black suitcase, and a small carry bag. Esqueda asked Appellant to show him the bags’ contents. Appellant showed Esqueda some clothing in the medium bag. Esqueda then asked Appellant to show him what was in the small carry bag. He believed Appellant was apprehensive about opening the remaining bags. Appellant opened the carry bag and showed Esqueda some hygiene articles and underwear; however, from Esqueda’s perspective, he believed Appellant appeared to be ignoring a blue plastic sack inside the bag.

          Esqueda pressed down on the carry bag and felt something hard inside. Appellant then looked up at Esqueda and said, “Okay, I lied.” Esqueda looked in the sack and found five bundles of cash held together by rubber bands. When he inquired how much money was in the bag, Appellant responded $17,500. Esqueda testified that, in his experience, people smuggling or transporting illegal proceeds often bundled the money with rubber bands and placed it in plastic bags.

          Esqueda then searched the medium bag and found a set of scales. Appellant indicated he used the scales to “weigh stuff.” The large, tan bag was empty. Appellant stated he owned the money and had brought it with him because he was thinking of going to Las Vegas. He told Esqueda that he had worked for the money.

          Esqueda suspected Appellant was transporting scales to measure drugs and intended to use the empty suitcase to store drugs. Based upon his observations, Esqueda believed the cash represented proceeds from illegal transactions. He accompanied Appellant to his patrol car and called for a canine officer. When Esqueda asked Appellant why he lied about the money being in his vehicle, Appellant responded he was nervous telling anyone he had a large amount of cash in his car because, when he was young, he had problems with the police taking his money.

          When DPS Trooper Tony Rocha arrived with DPS Canine Storm, Esqueda asked him to run Appellant’s car. Storm was trained to detect an odor of marihuana, methamphetamine, cocaine, and heroin. Storm did not alert to the interior or exterior of Appellant’s car. Rocha put Storm in the trunk and he alerted to the small carry bag containing the currency and the large empty suitcase. Esqueda then arrested Appellant for money laundering, seized the $17,620, and deposited the money in a bank.

II. Indictment

          Two and a half years later, in July 2004, Appellant was indicted by a Gray County Grand Jury for money laundering. The indictment provided as follows:

[U]pon their oaths present in and to said Court at said term that DAVID JAMES DESCHENES hereinafter styled Defendant, on or about the 11^th day of January, 2002, and before the presentment of this indictment, in the County and State aforesaid, did then and there knowingly possess, conceal, and transport the proceeds of criminal activity, to-wit: United States currency, and the value of the said funds was $3,000.00 or more but less than $20,000.00, against the peace and dignity of the State.

          The Texas Penal Code defines “criminal activity” as any offense, including any preparatory offense, that is classified as a felony under the laws of this State or the United States, or that is punishable by confinement for more than one year under the laws of another state. Tex. Penal Code Ann. § 34.01(1) (Vernon 2003). “Proceeds” are defined as “funds acquired or derived directly or indirectly from, produced through, or realized through an act.” § 34.01(4).

          The Grand Jury failed to specify in the indictment and the State failed to identify at trial the offense that constituted the statutory element of criminal activity relied upon by the State to meet its burden of proof. Per the statutory definition, it is clear that the term “criminal activity” could comprise any one of hundreds of felony offenses, state or federal.

          While the State maintains that it is under no obligation to specify in the indictment the criminal activity from which the “proceeds” originated, it fails to cite any authority for this proposition. While we agree that the indictment invoked the jurisdiction of the trial court, Teal v. State, 230 S.W.3d 172, 180 (Tex.Crim.App. 2007); Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App. 1997), we find the indictment was defective.

          Generally, an indictment which tracks the statutory language defining an offense will provide adequate notice to the accused of the nature of the charges against him. Curry v. State, 30 S.W.3d 394, 398 (Tex.Crim.App. 2000); Mays v. State, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998). An indictment need not set forth facts which are “merely evidentiary in nature.” Mays, 967 S.W.2d at 406. However, in the face of a motion to quash, an indictment must provide more specific allegations “if the prohibited conduct is statutorily defined to include more than one manner or means of commission.” Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Crim.App. 1994). The statutory definition of “criminal activity” includes a myriad of manner or means of commission. Therefore, an indictment alleging the offense of money laundering should specify the offense which the State contends to be the relevant “criminal activity” and failure to do so renders the indictment defective.

          That said, if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). In this case, Appellant never sought to require the State to specify the exact “criminal activity” it was relying upon to prove the allegations in the indictment. Therefore, Appellant’s complaints on appeal will be analyzed based upon the indictment as drafted.

III. Trial

          On September 18 and 19, 2006, Appellant was tried by a jury. At trial, the State neither proffered nor argued any specific theory pertaining to the element of criminal activity. Rather, in its opening and closing statements, the State argued only that Appellant was involved in “criminal activity.” Although the State’s principal witness, Esqueda, made several indirect references to “drug trafficking” and “drug smuggling” while describing generally the activities of persons involved in such illegal ventures, he expressed no opinion connecting Appellant and the money to any identified felony. In fact, Esqueda testified he had no personal knowledge where Appellant’s money originated.

          In presenting to the jury the applicable law and relevant definitions, the trial court charged the jury as follows:

The Defendant, DAVID JAMES DESCHENES, stands charged by indictment with the offense of MONEY LAUNDERING, . . . . A person commits the offense if the person knowingly possesses, conceals and transports the proceeds of criminal activity and the value of the funds is $3,000 or more but less than $20,000. Unless you so find by a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict “Not Guilty.”

“Criminal activity” means any offense, including any preparatory offense, that is classified as a felony under the laws of this State or the United States or punishable by confinement for more than one year under the laws of another state.

“Funds” include coin or paper money of the United States.

“Proceeds” means funds acquired or derived directly or indirectly from, produced through, or realized through an act.  

          Neither the indictment, jury instructions, nor the State’s arguments ever identified the “offense” or “felony” that constituted the “criminal activity” from which the $17,620 was “acquired or derived directly or indirectly from, produced through, or realized.”  

Discussion

I. Appellant’s Contentions

          Appellant contends the State’s evidence at trial was legally insufficient to prove money laundering because the State failed to prove that the money found in Appellant’s car was proceeds from any criminal activity. Appellant also asserts the State failed to identify and prove the criminal activity from which the money was acquired or derived. Alternatively, Appellant asserts the evidence is factually insufficient to support his conviction. Finally, Appellant contends the trial court erred in its denial of his motion to suppress all evidence obtained after the warrant check was run on him and Esqueda issued a traffic warning because Esqueda had no reasonable suspicion to continue his detention after the traffic warning was issued.

II. Legal Sufficiency - Standard of Review

          In assessing the legal sufficiency of the evidence, we must consider all the record evidence in the light most favorable to the prosecution and determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). In carrying out this task, we remain cognizant that “proof beyond a reasonable doubt” means proof to a high degree of certainty; Lane v. State, 151 S.W.3d 188, 191 (Tex.Crim.App. 2004), and if, based on all the evidence, a reasonably-minded jury must necessarily entertain a reasonable doubt of the defendant’s guilt, due process requires that we reverse the conviction and order a judgment of acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003), citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). In effect, a claim of legal insufficiency is an argument that the case never should have been presented to the jury. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.E.2d 349 (2001).

          In conducting a legal sufficiency review, we do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we determine whether the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In our examination, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and the standard of review of appeal is the same for both direct and circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Any inconsistencies in the evidence are also resolved in favor of the adjudication. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

          We measure the sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge would be one which “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

III. Hypothetically Correct Jury Charge

          In fashioning our hypothetically correct jury charge, we are bound by the law “as authorized by the indictment.” That is to say, Appellant’s hypothetically correct jury charge would simply quote the language of the indictment, instructing the jury to find Appellant guilty if it found that the money was proceeds of “criminal activity.” See Curry, 30 S.W.3d at 404. Just as we cannot substitute ourselves for the Grand Jury and re-write the indictment, we cannot search the statutes, state and federal, to find a felony to fit the State’s evidence or the jury’s verdict. Here, where the indictment and the jury instructions merely parrot the statute and Appellant did not seek to compel the State to specify the specific criminal activity, we are bound by the language contained in the indictment in conducting our sufficiency analysis. Fisher v. State, 887 S.W.2d 49, 57 (Tex.Crim.App. 1994). Therefore, the essential elements of the offense of money laundering, pursuant to § 34.02(a)(1) of the Texas Penal Code, under our hypothetically correct jury charge as authorized by the indictment in this case, are met when a person: (1) knowingly; (2) acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports; (3) the proceeds; (4) of criminal activity. Tex. Penal Code Ann. § 34.02 (Vernon Supp. 2007)  

IV. Proceeds of Criminal Activity

          Appellant contends the State failed to offer any evidence that the $17,620 represented “proceeds” of any “criminal activity.” As stated above, for purposes of a money laundering prosecution, proceeds are statutorily defined as funds acquired or derived directly or indirectly from, produced through, or realized through some criminal activity. § 34.01(4).   

          On appeal, for the first time, the State argues evidence was presented to the jury from which they were entitled to conclude that Appellant’s money came from “sales and trafficking in narcotics.” Although the State did not argue this theory at trial, it contends the collective impact of the entire body of evidence legally supports this conclusion.

           While not directly addressing the question of whether the money was derived from criminal activity, the State contends that civil asset-forfeiture cases under Chapter 59 of the Texas Code of Criminal Procedure are persuasive. See Tex. Code Crim. Proc. Ann. arts. 59.01, 59.02 (Vernon 2006). While asset-forfeiture cases can be argued to support a legal sufficiency finding that money seized was “used or intended to be used” in the commission of a felony under the civil preponderance of the evidence standard, they are of limited precedential value when analyzing a legal sufficiency finding that money was proceeds derived from criminal activity under the beyond a reasonable doubt standard. If anything, cases finding a lack of legal sufficiency under the reduced civil standard are persuasive of finding a lack of legal sufficiency under the higher criminal standard.

          The State contends that its best single piece of evidence that Appellant’s money was proceeds of some criminal activity was Esqueda’s “expert” testimony that “[a] lot of the proceeds from the drugs that are shipped to the east come back westbound to either the originator who sent the drugs or someone that’s going to purchase narcotics or weapons or whatever the contraband may be.” For this speculative statement to have any probative value there must be some connection between the money and the trafficking of drugs. Proof that amounts to only a strong suspicion or mere probability of guilt is insufficient to sustain a conviction. Allen v. State, ___ S.W.3d ___, No. 03-04-00557-CR, 2008 WL 615431, at *18 (Tex.App.–Austin March 7, 2008, no pet h.). If circumstantial evidence provides no more than a suspicion, the jury is not permitted to reach a speculative conclusion. Id. A jury may not reasonably infer an ultimate fact from meager circumstantial evidence, none more probable than another. Id. In order for a conviction for money laundering under § 34.02(a)(1) to be upheld, there must be direct or circumstantial evidence of a temporal connection, or nexus, between the money and some criminal activity.   

          Here, the evidence tending to establish a connection between the money and some unnamed criminal activity amounts to mere conjecture. In support of a nexus between Appellant’s $17,620 and some unidentified “criminal activity,” the State points to profiling characteristics and a positive alert by a narcotics dog: (1) Appellant opened the passenger door to speak to the officer, handed him his wallet when asked for his license, and exited on the passenger side at the officer’s request; (2) car had energy drinks and fast food wrappers on the floorboard giving it a “lived-in” look; (3) he could not give his uncle’s exact address in San Diego; (4) he was traveling east to west on Interstate 40; (5) he was nervous throughout the encounter; (6) he stared at his vehicle rather than maintaining eye contact when answering one of Esqueda’s questions; (7) he denied carrying a large sum of cash; (8) he was in possession of scales; (9) he avoided showing Esqueda the money; (10) the money was in a plastic bag; (11) it was a large amount of money; (12) the money was divided into bundles and wrapped with rubber bands; (13) he had an empty suitcase; (14) he denied having any drugs in his vehicle; (15) he stated he was going to Las Vegas; (16) he failed to produce “documentation” for the money; (17) a narcotics dog alerted to the money and the large empty suitcase; (18) an odor of narcotics on the empty suitcase; (19) the close proximity of the cash to the empty suitcase that presumably contained narcotics at one time; (20) an odor of narcotics on the cash; (21) the money was enough to purchase a felony amount of narcotics; (22) money from drug trafficking travels east to west.

          Profiling characteristics are normally factors courts consider when determining whether Fourth Amendment rights are implicated by a brief investigatory detention. The mere fact that a person’s actions match a drug courier profile and that person is carrying a large amount of money that might be involved in some illegal activity is insufficient to establish probable cause to justify forfeiture; United States v. $49,576.00 in U.S. Currency, 116 F.3d 425, 427-29 (9^th Cir. 1997); United States v. $80,760.00, 781 F.Supp. 462, 475-76 (N.D.Tex. 1991)(“In this circuit, it is well settled that a statement of profile characteristics will not, in and of itself, create a reasonable suspicion.”), and it is insufficient to establish a nexus between the money and some criminal activity beyond a reasonable doubt.

          The State did not present any credible evidence from which it could be inferred Appellant was involved in any drug transaction, sale, or delivery at or around the time he was arrested for money laundering. The State produced no evidence of drugs being found. Nor did the State present any evidence of previous involvement in drugs or drug-related activities by Appellant. Appellant has no prior convictions or police contact related to drugs, has no known relationship with drug trafficking, and made no admissions related to the source of the money other than to say he earned it. Furthermore, the money was not packaged in any way to indicate a conscious desire to prevent its detection by drug dogs. Here we have no admissions, no drugs, no prior connection to drugs, and no obvious attempt to surreptitiously secrete the money or prevent its discovery. Simply put, we have no credible evidence of a temporal connection, or nexus, between the money and some criminal activity. Accordingly, we find the jury’s verdict is not supported by legally sufficient evidence. Issue one is sustained.

          Our disposition of issue one pretermits consideration of Appellant’s second and third issues. Therefore, we reverse the trial court’s judgment of conviction and render judgment of acquittal.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Campbell, J., concurring in result.

Publish.