Juan A. Govea v. State ( 2003 )

NO. 07-00-0217-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 17, 2003

______________________________



JUAN GOVEA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-431226; HONORABLE RON ENNS, JUDGE

_______________________________

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

MEMORANDUM OPINION

Appellant Juan Govea appeals from his conviction for murder and sentence of incarceration for life. We affirm.

During the early morning hours of July 10, 1999, Jose Jaquez was shot and killed outside of his home in Lubbock County. Appellant was arrested in Merkel, Texas, for the crime. He was returned to Lubbock County and tried for murder. A jury convicted him and sentenced him to life imprisonment.

Appointed counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which an arguably meritorious appeal can be predicated. Counsel thus concludes that the appeal is without merit.

In reaching the conclusion that the appeal is without merit, counsel advances nine possible issues. Those issues reference possible trial court errors by: (1) denying appellant's motion to suppress where appellant, a citizen of Mexico, was not advised of his rights under the Vienna Convention before making a statement to the police; (2) overruling appellant's objections to the State's alleged attempt to commit the jury to a verdict of guilt on voir dire; (3) overruling appellant's objections to the State's alleged forcing of appellant's wife to invoke her privilege not to testify in the presence of the jury; (4) allowing the admission of appellant's custodial statements; (5) overruling appellant's objections to evidence used to impeach his testimony; (6) overruling appellant's objections to extraneous offense evidence used to impeach/rebut his testimony; (7) allowing admission of photographs of the victim of an extraneous assault; (8) overruling appellant's motion for mistrial for improper jury argument by the State during guilt-innocence; and (9) overruling appellant's request to instruct the jury to disregard alleged improper jury argument by the prosecutor during the punishment phase of trial.

After referencing and analyzing the record of the trial and the applicable law, counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. Appellant has filed a response to counsel's motion and brief.

We have reviewed the record in connection with the possible issues presented by counsel for appellant. We have also reviewed the record in regard to the assertions by appellant in his response to his counsel's Anders brief.

Appellant's response focuses on trial court decisions which are reviewed for abuse of the trial court's discretion. Parts of his response urge that during the suppression hearing the trial court abused its discretion in various decisions, findings and rulings, including determining the voluntariness of his custodial statements. Appellant urges that an abuse of discretion occurred because the trial court's decisions, findings and rulings credited testimony of police officers over his own testimony. In making such response, however, appellant acknowledges and cites authority holding that at a suppression hearing, the trial judge is the trier of fact and exclusive judge of witness credibility and weight to be given witness testimony. Appellant's conclusions of abused discretion on the part of the trial court do not comport with longstanding and well-established law concerning appellate deference to trial court discretion.

Appellant's response also ascribes the crime of aggravated perjury to one of the officers who testified at trial because the officer's testimony differed from his written report. His response cites the Penal Code and case law for elements of aggravated perjury, but totally fails to address the standard of appellate review for conflicts in evidence presented to a jury. Such standards entail legal and factual sufficiency of the evidence underlying decisions of the factfinder based on deference to the factfinder's resolution of conflicts in evidence and credibility questions. The standards do not call for or authorize our re-evaluation of evidence by substituting a view of the evidence favored by the losing party. When conflicting evidence is presented to a jury, it is well-established that the jury is to determine the credibility of the witnesses and the weight to be given their testimony. Where the testimonial evidence is conflicting and requires an evaluation of demeanor and credibility of witnesses, the jury is the final judge of the weight of the evidence. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). On appeal we do not disturb the jury's credibility determinations. Id. A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. An appellate court is not to "find" facts, or to substitute its judgment for that of the jury. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Appellant's contention that conflicts in the evidence resulted in aggravated perjury ignore established precedent and are meritless in the context of this record.

Appellant further responds that the trial court abused its discretion in allowing the State to impeach him at trial with extraneous offense evidence which appellant alleges was not disclosed in accordance with the trial court's pre-trial orders. In regard to this response, appellant once again recognizes that the trial court's decision is reviewed for abuse of discretion. Appellant does not address that part of the record in which the trial court afforded him a hearing outside the presence of the jury on the matters he now urges as arguable error, and ruled against appellant's position. Nor does he address the lack of evidence of harm, such as (1) any surprise to his counsel by the evidence, or (2) how his case would have been tried any differently had the extraneous offense evidence been disclosed earlier. In light of the record, appellant's assertions are meritless and present no arguable grounds for an appeal.

In addition to reviewing the record in connection with the possible issues addressed by appellant's counsel and the pro se response filed by appellant, we have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree that the appeal is frivolous.

Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.

Phil Johnson

Chief Justice

Do not publish.

determines whether the evidence links appellant to the contraband. Trejo, 766 S.W.2d at 385.

By his argument, appellant contends the evidence does not link him to the methamphetamine contained in the black pouch found under the passenger's seat. He suggests, instead, that his passenger, who law enforcement officers were searching for that day, was more closely linked to the larger quantity of methamphetamine.

Appellant was the owner and driver of the vehicle. Trooper Ashburn testified he detected an odor of marihuana on appellant, and appellant admitted he had marihuana in his ashtray and methamphetamine on his person. An undercover narcotics officer testified that usually marihuana use is associated with methamphetamine and it is common for a user to be a dealer. The officer also testified that given the manner of packaging, there was no doubt the methamphetamine in the pouch was for sale. According to Trooper Ashburn, the quantity of methamphetamine found in the pouch was more than for personal use, and the scales found in the pouch were an indicator of selling for profit.

Testimony from a drug analyst confirmed that the amount of methamphetamine found on appellant was 1.02 grams, and the black pouch contained small plastic bags weighing 21.87 grams. He also testified that samples from both were consistent with one another. Trooper Ashburn testified that the syringe taken from the passenger contained a brown substance, whereas the methamphetamine found on appellant was similar in color and packaging to the contents of the plastic bags found in the leather pouch.

The undercover narcotics officer testified that some of the ingredients used in cooking methamphetamine include lithium batteries and starter fluid. Following his testimony, the State requested an opportunity to present testimony from three witnesses outside the jury's presence that appellant was obtaining precursors for cooking methamphetamine to support its delivery allegation. Two loss prevention security officers from Wal-Mart testified they are trained to watch high theft areas and that one such area is the lithium batteries display. They testified that on two separate occasions appellant was caught shoplifting lithium batteries. Shortly before the first offense, appellant aroused the suspicion of one of the officers because his shopping basket contained 12 cans of starter fluid, plastic tubing, and a package of 50 plastic baggies. The third witness, a police officer, testified he was called to the scene of the first offense to issue a criminal trespass warning to appellant.

Following their testimony, defense counsel objected on the ground that appellant had not been charged with manufacturing methamphetamine and the testimony might cause the jury to convict for the wrong reason. He further objected that no testimony was presented on the size of the plastic baggies contained in appellant's shopping cart.

The court ruled the witnesses would be allowed to testify to show knowledge and intent to deliver and offered to give the jury a limiting instruction. Thereafter, the witnesses testified before the jury regarding the shoplifting offenses. During cross-examination, the police officer who issued the criminal trespass warning could not recall what size plastic baggies appellant purchased.

The narcotics undercover officer was recalled and testified without objection that methamphetamine is packaged in small plastic sandwich bags and that most people who cook methamphetamine are users who sell to support their habit. In his words, cooks, dealers, and users are "all wrapped up in one."

Evidence was also presented that appellant was cooperative, did not attempt to flee or make furtive gestures, did not have large amounts of cash, and the black pouch was in closer proximity to the passenger. However, the logical force of the evidence presented by the State, i.e., appellant was the owner and driver of the vehicle, the odor of marihuana and its connection to methamphetamine, the similarity in color and packaging to the methamphetamine on appellant's person and in the pouch, the presence of a syringe and scales, the quantity of the methamphetamine in the pouch, and the shoplifting incidents, affirmatively linked appellant to possession of methamphetamine contained in the black pouch and established intent to deliver. Appellant's version of the events without evidence supporting his hypothesis of innocence does not render the evidence insufficient to support his conviction. See Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) citing Little v. State, 758 S.W.2d 551, 563 (Tex.Cr.App. 1988), cert. denied, 488 U.S. 934, 109 S. Ct. 328, 102 L. Ed. 2d 346 (1988). We conclude a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Appellant's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.