DocketNumber： 14-03-00075-CR
Filed Date： 7/27/2004
Status： Precedential
Modified Date： 4/17/2021
Affirmed and Memorandum Opinion filed July 27, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00075-CR
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BERTIN LOUBEAU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 11936
M E M O R A N D U M O P I N I O N
Appellant Bertin Loubeau was found guilty by a jury of possession with intent to deliver more than 400 grams of cocaine and was sentenced by the trial court to fifty years= imprisonment. In two points of error, appellant claims the evidence at trial was legally and factually insufficient to support the verdict. We affirm.
On the morning of September 11, 2001, Lawrence Lilly, a trooper with the Texas Department of Public Safety (ADPS@), stopped Kenol Luxama and appellant for a traffic violation while traveling on I-10 near Highway 46. Luxama was the driver of the vehicle. Appellant was the passenger. Lilly searched the vehicle, a U-Haul truck, and found approximately 165 pounds of cocaine, worth about seven million dollars.[1]
In his two points of error, appellant challenges the legal and factual sufficiency of the evidence. In evaluating a legal-sufficiency claim, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19. Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id.
In conducting a factual-sufficiency review, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, C S.W.3d BB , BB (Tex. Crim. App. Apr. 21, 2004). We may find the verdict is factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. We must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder. Zuniga, 2004 WL 840786, at *4. Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain, 958 S.W.2d at 407.
A person commits a felony offense if that person knowingly or intentionally possesses cocaine with the intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112 (a), (f) (Vernon Supp. 2001). When an accused is charged with unlawful possession of cocaine, the State must prove (1) the defendant exercised actual care, custody, control, or management over the contraband, and (2) the accused knew the object he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). When the accused is not in exclusive control or possession of the place where the contraband is found, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband=s existence and that he exercised control over it. Villareal v. State, 116 S.W.3d 74, 79 (Tex. App.CHouston [14th Dist.] 2001, no pet.). It makes no difference whether this evidence is direct or circumstantial because, in either case, it must establish to the requisite level of confidence that the accused=s connection with the drug was more than fortuitous. Brown, 911 S.W.2d at 747.
Appellant asserts a lack of affirmative links between him and the cocaine. Specifically, appellant argues his presence in the vehicle is insufficient to support his conviction because (1) there were no drugs found on his person, (2) his fingerprints were not found on the Abricks@ of cocaine, and (3) no currency was found on him or in the U-Haul. Although mere presence in the vicinity of contraband is insufficient to prove that a person exercised control over the contraband or was a party to the offense, it is a circumstance tending to prove guilt, which, when combined with other facts, may suffice to show guilt. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Alvarez v. State, 813 S.W.2d 222, 224 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d) (recognizing link between narcotics hidden in tanker and defendant riding in separate car by defendant=s pattern of counter-surveillance). Notably, there is no rigid formula by which we may find an affirmative link sufficient to support an inference of knowing possession. Villareal, 116 S.W.3d at 80. Instead, affirmative links are established by a totality of the circumstances. See, e.g., Sosa v. State, 845 S.W.2d 479, 483B84 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (finding the totality of the circumstances was of such a character that the jury reasonably could conclude the defendant was aware of the contraband and exercised control over it).
At trial, Nikki Cameron, manager of Brazos Self-Storage in Lake Jackson, testified that on September 10, 2001, she leased a unit at her storage facility to Antoine Joseph, an acquaintance of appellant. That day, she saw several people working at the facility and acting suspiciously. She saw one man standing at the front gate of the facility with a cellular phone. He placed a call on it every time anyone entered or exited the facility. The electronic gate tracking system also indicated that Joseph=s code was used 26 times that day, an unusually high number of times. Cameron was alarmed by the suspicious activities and called the police.
The City of Freeport Police arrived, performed surveillance, and observed men loading a U-Haul truck. Captain Richard Miller entered the storage unit after the men left and found blue bags containing many empty boxes of toothpaste and packages and wrappings that may have previously contained drugs. Miller noted that an investigation had been in progress on a ship, Salome, which was suspected of being involved in transporting narcotics. Captain Miller alerted state and national law enforcement agencies to be on the lookout for the U-Haul, providing its license plate number. Trooper Lilly stopped the U-Haul the next day. Appellant was in the passenger=s seat.
Lilly testified that, during the traffic stop, appellant and Luxama both seemed excessively nervous. Appellant was fidgety and would not look at Lilly. Lilly said appellant was more nervous than the usual person pulled over by law enforcement. Moreover, appellant=s and Luxama=s stories of where they had been and where they were going were inconsistent. When Lilly asked permission to search the U-Haul, Luxama said everything in it belonged to appellant. Appellant did not deny this. Rather, he granted Lilly permission to search and gave Lilly the key to open the truck. Upon opening the truck, Lilly immediately detected a strong chemical smell that he recognized as one that is often used to mask the odor of illegal narcotics. There were several old items of furniture and appliances in poor shape located in the truck. In the rear of the U-Haul, Lilly noticed an old television with wet glue on its back. Lilly punched a small hole in the television and observed several bricks of cocaine covered with toothpaste. Additional cocaine was found in a washer and dryer.
Appellant told Trooper Lilly he was moving furniture for Sarah Wright. He referred to her as his friend and as his girlfriend. However, receipts for the purchase of the items in the U-Haul were found in Luxama=s wallet. Moreover, Wright testified she did not own the furniture. Wright was with appellant when he and some other men bought the furniture and appliances that were found in the U-Haul. Wright testified she rented the U-Haul for appellant to move the newly-purchased furniture. The U-Haul rental contract listed appellant as the authorized secondary driver. Wright stated that she had no plans to move and never told appellant otherwise.
Appellant testified that Joseph offered him four-hundred dollars to fly from Florida to Texas to assist with moving Wright=s furniture to Beaumont. Appellant admitted that on September 10, he accompanied Wright when she rented the U-Haul, was present for the purchase of at least some of the items found in the U-Haul, and was at the storage facility when the furniture was loaded into the U-Haul. Appellant said he spent an hour loading furniture from the storage unit into the U-Haul, and another two hours waiting to be picked up by Joseph. Appellant claimed he never actually entered or looked inside the storage unit.
In sum, the evidence at trial affirmatively linked appellant with purchasing the furniture and appliances in which the cocaine was found, renting the U-Haul truck that carried the cocaine, loading the furniture and appliances into the U-Haul, and transporting the furniture and appliances in the U-Haul. This evidence tends to sufficiently link appellant to the offense for which he was convicted. Although appellant=s testimony differed from that of some of the State=s witnesses, the jury is the sole judge of all witness testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997). Accordingly, the jury could choose to accept the testimony of the State=s witnesses and disbelieve appellant=s testimony.
Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of possession of cocaine with intent to deliver. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support the verdict. We overrule appellant=s two points of error and affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Opinion filed July 27, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not contest the validity of the search.