Jacob Adam Ramirez v. State

Opinion issued July 11, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00189-CR
NO. 01-18-00190-CR
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JACOB ADAM RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case Nos. 16CR2618, 16CR2619
MEMORANDUM OPINION
Jacob Ramirez was convicted of possession of more than 4 grams but less
than 200 grams of methamphetamine and possession of a firearm by a felon. See
TEX. HEALTH & SAFETY CODE §§ 481.115(a), 481.115(c), 481.102(6); TEX. PENAL
CODE § 46.04(a). A jury found Ramirez guilty of both offenses. The court found
two enhancement paragraphs true and sentenced him to 30 years’ imprisonment for
the drug conviction and 15 years’ imprisonment for the gun conviction, with the
sentences running concurrently. Ramirez appeals from both convictions. We
affirm.
Background
Ramirez drove south on a highway in Galveston County with a female
passenger. They were driving a blue car that they had picked up at his mother’s
house. The car belonged to Ramirez’s girlfriend. Trooper J. Cano of the Texas
Department of Public Safety Highway Patrol Division observed Ramirez speeding
past him on the highway near Galveston. Trooper Cano concluded that Ramirez
was speeding, based on his training and experience, and then confirmed the speed
on the radar. Trooper Cano also observed that the car had a temporary license plate
that he could not read because it was flapping in the wind. He turned on his patrol
lights and pulled over Ramirez.
Ramirez stopped on the inside shoulder of the highway. When Trooper Cano
approached the car, he smelled marijuana and asked Ramirez to get out of the car.
When asked for his identification, Ramirez stated that he did not have it with him
and gave Trooper Cano a name and birthdate. Trooper Cano was unable to identify
Ramirez with the information provided. Ramirez volunteered to Trooper Cano that
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he was a member of the prison gang Tango Blast Houstones, but Trooper Cano
was still unable to identify him. Ramirez said the car belonged to his cousin, an
affiliate of another prison gang, who lived in Dallas. Trooper Cano noticed that
Ramirez was nervous and stuttering, and his responses to questions were indirect
and unclear.
Trooper Cano asked Ramirez about the marijuana smell, and Ramirez
admitted that he had thrown a marijuana cigarette out of the vehicle before he was
stopped. Trooper Cano searched the car. He immediately noticed a handgun on the
driver’s side floorboard, in between the door and the seat. He also observed an
open can of beer and a vaporizer. Trooper Cano continued to search the vehicle
and asked the passenger to get out of the car. He separated her from Ramirez by
keeping her in front of the car while Ramirez was behind it, sitting on the patrol
car’s hood.
Trooper Cano found a scale and almost 15 ounces of marijuana on the
floorboard behind the passenger seat. He found several small pills of different
colors in a pill bottle in the glove compartment. The officer believed that the small
pills were ecstasy. They were yellow, blue, and green colored, and stamped with
the logo of a credit card company. He asked Ramirez if he knew what the pills
were, and Ramirez replied that they were either ecstasy or “narco pills.” Trooper
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Cano did not know what “narco pills” were, and lab tests showed that the pills
were methamphetamine.
While searching the car, Trooper Cano eventually found a piece of paper
with a photo of Ramirez, listing his name and date of birth. He confronted Ramirez
about it, and Ramirez admitted that he had lied about his identity because he knew
of an outstanding warrant for his arrest. Trooper Cano arrested Ramirez.
At trial, the jury heard testimony describing these facts and watched a
45-minute video of the encounter taken from Trooper Cano’s police car. A lab
technician confirmed that the drugs recovered were methamphetamine weighing
more than four ounces. He testified that in recent years, when tested, pills that look
like ecstasy are methamphetamine. The jury also heard testimony from Ramirez’s
then-girlfriend who explained that the car belonged to her and she had left it at
Ramirez’s mother’s house. She had hoped it would be repaired by someone in the
neighborhood, and she left the keys with Ramirez’s mother. She testified that she
found the marijuana in her closet and put it in her car hoping to dispose of it, and
she put the pill bottle in the glove compartment after discovering it in her
bathroom. She knew there was a gun in the glove compartment, and she had it with
her so that she could register it. When asked, she responded that she was not aware
that registration is not required in Texas. Finally, the Ramirez’s mother testified
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that she gave the keys to the car to Ramirez after his girlfriend dropped it off. She
never drove the car and did not look inside it.
The jury found Ramirez guilty of both charges and the trial court sentenced
him to 15 years’ imprisonment for the drug conviction and 30 years’ imprisonment
for the gun conviction, with the sentences running concurrently.
On appeal, he argues that there was insufficient evidence to convict him of
either charge and that the trial court erred in denying his motion to suppress. We
disagree and affirm.
Sufficiency of the Evidence
Ramirez argues that there is insufficient evidence for the jury to have found
beyond a reasonable doubt that he was in possession of methamphetamine and a
firearm.
A. Standard of Review
Every criminal conviction must be supported by legally sufficient evidence
as to each element of the offense that the State must prove beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011). To determine whether this standard has been
met, we review all of the evidence in the light most favorable to the verdict, and
we decide whether a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Acosta v. State,
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429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). The jury is the sole judge of
witness credibility 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). 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. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Direct
and circumstantial evidence are equally probative. Tate v. State, 500 S.W.3d 410,
413 (Tex. Crim. App. 2016). Not every fact presented must directly indicate that
the defendant is guilty, so long as the cumulative force of the evidence is sufficient
to support a finding of guilt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim.
App. 2015).
B. Applicable Law
To establish unlawful possession of a firearm by a felon, the State must
show that the accused was previously convicted of a felony offense and possessed
a firearm after the conviction but before the fifth anniversary of his release from
confinement, community supervision, parole, or mandatory supervision, whichever
date is later. TEX. PENAL CODE § 46.04(a)(1); Hawkins v. State, 89 S.W.3d 674,
677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Possession is a voluntary
act if the possessor knowingly obtains or receives the thing possessed or is aware
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of his control of the thing for a sufficient time to permit him to terminate his
control. TEX. PENAL CODE § 6.01(b); Hawkins, 89 S.W.3d at 677.
To prove unlawful possession of a controlled substance, the “State must
prove that (1) the accused exercised control, management or care over the
substance; and (2) the accused knew what he possessed was contraband.” Evans v.
State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX. HEALTH &
SAFETY CODE § 481.002(38) (“‘Possession’ means actual care, custody, control or
management.’”).
We use the same standard to analyze the sufficiency of the evidence for
possession of a firearm by a felon as we do for sufficiency of the evidence for
possession of a controlled substance. Corpus v. State, 30 S.W.3d 35, 37–38 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d). Evidence which creates a reasonable
inference that the accused knew of the existence of and exercised control over the
contraband will suffice to meet the burden of the State. Dickey v. State, 693
S.W.2d 386, 389 (Tex. Crim. App. 1984). The evidence, whether direct,
circumstantial, or both, must establish that the defendant’s connection was more
than fortuitous. Evans, 202 S.W.3d at 161; James v. State, 264 S.W.3d 215, 218–
19 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). This is the “affirmative
links” rule, “which protects the innocent bystander— a relative, friend, or even
stranger to the actual possessor—from conviction merely because of his fortuitous
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proximity to someone else’s [guns or drugs].” Evans, 202 S.W.3d at 161–62.
“Mere presence at the location where [contraband is] found is . . . insufficient, by
itself, to establish actual care, custody or control of [that contraband].” Id. at 162.
“However, presence or proximity, when combined with other evidence, either
direct or circumstantial (e.g., ‘links’), may well be sufficient to establish that
element beyond a reasonable doubt.” Id.
Links that may circumstantially establish the sufficiency of the evidence to
prove knowing possession include:
(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
contraband;
(4) whether the defendant was under the influence of narcotics
when arrested;
(5) whether the defendant possessed other contraband when
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 contraband was found;
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(12) whether the place where the drugs or guns were found was
enclosed;
(13) whether the defendant was found with a large amount of cash;
(14) whether conflicting statements on relevant matters were given
by the persons involved;
(15) whether the defendant’s conduct indicated a consciousness of
guilt.
Id. at 162 n.12. (drugs); James, 264 S.W.3d at 219 (firearms); Corpus, 30 S.W.3d
at 38 (firearms). The absence of any of these various links does not constitute
evidence of innocence to be weighed against the links present. Williams v. State,
313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Instead,
we measure the sufficiency of the evidence by looking to the logical force of all of
the evidence, rather than tallying the links present in a given case. Id.; Evans, 202
S.W.3d at 162 (“It is . . . not the number of links that is dispositive, but rather the
logical force of all of the evidence, direct and circumstantial.”).
We address the sufficiency of the evidence for each conviction in turn.
C. Sufficiency for gun conviction
Reviewing the evidence in the light most favorable to the jury’s verdict, we
conclude that sufficient evidence supports Ramirez’s conviction for unlawful
possession of a firearm by a felon.
Ramirez argues that there was insufficient evidence that he was aware of the
firearm in the vehicle. The firearm’s owner was Blanca Longoria. Longoria
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testified that she kept the gun in her car: sometimes in the glove compartment,
sometimes under a seat, and sometimes in the trunk. When asked where the gun
was when she dropped her car off at Ramirez’s mother’s house, she testified first
that she did not know, but when asked again she said it was in the glove
compartment. Ramirez argues that Longoria’s recollection, without fingerprint
evidence, is not enough to prove he knew of the firearm. We disagree.
Ramirez was driving the car. The jury heard testimony from Trooper Cano
that he saw a firearm and an open can of beer when he approached the driver’s side
of the car. The gun was on the driver’s side of the car between the seat and the
door. In Trooper Cano’s opinion, a person would notice the gun when getting into
the car. Ramirez told Trooper Cano that he knew who owned the gun. The jury
watched video of the encounter and could observe Ramirez’s nervousness and
conflicting and false statements to Trooper Cano.
Viewing the evidence in a light most favorable to the jury’s verdict, the
record establishes several links between Ramirez and the weapon. Ramirez was
near the weapon, which was located within inches of his legs and within easy
reach. He was nervous when interacting with Trooper Cano and attempted to
conceal his identity, and he told law enforcement that he knew who owned the gun.
A rational jury could have found these circumstances sufficient to show Ramirez’s
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knowing possession of the firearm. James, 264 S.W.3d at 220. We hold that the
evidence is legally sufficient to support the jury’s finding.
We overrule Ramirez’s first issue.
D. Sufficiency for drug conviction
Reviewing the evidence in the light most favorable to the verdict, we find
that the evidence was sufficient to enable a rational juror to find beyond a
reasonable doubt that Ramirez exercised care, custody, control, or management
over the pills found in the car, and it likewise was sufficient to establish that he
knew the pills were contraband. He was driving the car in which the pills were
found in the glove compartment; Trooper Cano detected the odor of marijuana
when he approached the side of the car; additional contraband was found in the
passenger area of the car including nearly a pound of marijuana, a vaporizer, an
open container of beer, a scale, and, within Ramirez’s reach, a handgun; Ramirez
gave conflicting accounts of his identity; Ramirez told the officer he was the only
person willing to drive the car; and Ramirez admitted that knew who pressed the
pills and that the pills were ecstasy or “narco pills.”
The evidence is sufficient to establish that the substance found in Ramirez’s
car contained methamphetamine, was visible, and weighed more than four grams.
“If the controlled substance can be seen and measured the amount is sufficient to
establish the defendant knew it was a controlled substance.” Victor v. State, 995
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S.W.2d 216, 220 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In contrast,
“[w]hen the quantity of a substance possessed is so small that it cannot be
quantitatively measured, there must be evidence other than its mere possession to
prove that the defendant knew the substance in his possession was a controlled
substance.” Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979). The lab
technician testified that the pill bottle contained more than four grams of
methamphetamine, and that in his experience over the past seven years, pills
submitted for testing that look like ecstasy or MDMA are actually
methamphetamine. Because the substance contained methamphetamine and can be
seen and measured, “[t]he amount is sufficient to establish the defendant knew it
was a controlled substance.” Victor, 995 S.W.2d at 220.
Ramirez argues that the evidence is insufficient to establish that he knew the
substance was methamphetamine particularly. Ramirez suggests that his statements
that the substance was a different drug demonstrate that he did not know the
substance was methamphetamine. The State argues that it was only required to
prove that he knew the substance was a controlled substance.1 We need not resolve
this argument, however. While it is undisputed that Ramirez made the statement to
the officer that the pills were “narco pills” or ecstasy, there was no requirement for
1
But see King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (“Therefore,
the State must prove, through other evidence, that appellant had knowledge that
the substance in his possession was cocaine.”)
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the jury to conclude that this statement was honest and credit it. “With respect to
testimony of witnesses, the jury is the sole judge of the credibility and weight to be
attached thereto, and 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.” Thomas, 444 S.W.3d at 8; see also Lamb v. State, No. 01-14-
00901-CR, 2015 WL 6933120, at *4 (Tex. App.—Houston [1st Dist.] Nov. 10,
2015, pet. ref’d) (mem. op., not designated for publication) (discussing that jury
was sole judge of witness credibility, including defendant’s statement to police that
drug was a different type). Given Ramirez’s deceptive statements to the officer, a
jury could have disbelieved Ramirez’s statement about the type of drug. Because
this determination would support the jury’s verdict, we must defer to that
determination. See Thomas, 444 S.W.3d at 8.
We overrule Ramirez’s second issue.
Motion to Suppress
Ramirez argues that the trial court erred in denying his motion to suppress
because the officer did not have reasonable suspicion to stop him. We disagree.
A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and
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review the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on evaluation of witness credibility or demeanor. Gonzales
v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing,
the trial court is the sole and exclusive trier of fact and judge of the witnesses’
credibility and may choose to believe or disbelieve all or any part of the witnesses’
testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When the trial court does not make explicit findings of fact, we review the
evidence in the light most favorable to the trial court’s ruling. Walter v. State, 28
S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial court’s findings
of fact and not disturb the findings on appeal unless the trial court abused its
discretion in making a finding not supported by the record. See Cantu v. State, 817
S.W.2d 74, 77 (Tex. Crim. App. 1991).
B. Analysis
To justify a traffic stop, a law enforcement officer must have reasonable
suspicion. York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). Reasonable
suspicion exists when an officer is aware of specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
suspect that a person has engaged in, is engaging in, or soon will be engaged in
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criminal activity. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).
The reasonable suspicion standard is objective, requiring only “some minimal level
of objective justification” for the stop. Id.; see also Garcia v. State, 43 S.W.3d 527,
530 (Tex. Crim. App. 2001). Whether the facts known to the officer amount to
reasonable suspicion is a mixed question of law and fact subject to de novo review.
Hamal, 390 S.W.3d at 306.
A traffic violation committed in an officer’s presence is sufficient to
authorize an initial traffic stop. See Walter, 28 S.W.3d at 542. The criminal activity
relied on by the State to support the traffic stop was driving at an unsafe speed,
TEX. TRANSP. CODE § 545.351, and failure to display a license plate tag in
accordance with administrative rules, TEX. TRANSP. CODE § 503.069. The
Administrative Code states that all printed information on a temporary license plate
must be unobstructed and secured to the car so that “the entire plate is visible and
legible at all times.” TEX. ADMIN. CODE § 215.151.
Trooper Cano testified that he observed Ramirez’s car speeding on the
highway, he confirmed the speed with his radar, and the car was going 73 miles per
hour in a 65 miles per hour zone. He could not read the car’s temporary license
plate because it was not secured correctly and was flapping in the wind.
Ramirez argues that Trooper Cano’s testimony about Ramirez’s speeding
was not credible because Trooper Cano did not put Ramirez’s speed in his police
15
report and because he later testified that the car was a different color at trial.2 He
also argues that although Trooper Cano testified that he knew Ramirez was
speeding based on his training and experience confirmed by his radar, Trooper
Cano could not have differentiated between Ramirez’s car and surrounding cars
driving by at the same time. But we must defer to the trial court’s resolution of
conflicts in the evidence and credibility determinations. Gutierrez v. State, 221
S.W.3d 680, 687 (Tex. Crim. App. 2007); St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007). Moreover, Trooper Cano’s trial testimony that the car
was a different color occurred after Ramirez raised his motion to suppress his
arrest and the trial court denied it. See Gutierrez, 221 S.W.3d at 687 (appellate
court considers additional trial evidence only if motion to suppress is relitigated at
trial). Ramirez did not ask the trial court to reconsider its ruling on the motion to
suppress based on the evidence upon which he now relies on appeal. See Black v.
State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012) (ruling on motion to suppress
is interlocutory, and trial court may reconsider its ruling at any time before end of
trial.).
Viewing the evidence in the light most favorable to the trial court’s ruling
and deferring to the trial court’s resolution of contradictory evidence and
determinations regarding witness credibility, we hold that the trial court did not
2
Trooper Cano first testified that the car was maroon and later, when shown a photo
of the car, acknowledged that the car was blue.
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abuse its discretion in denying Ramirez’s motion to suppress. See Carmouche v.
State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
We overrule Ramirez’s third issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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