Full Opinion (html_with_citations)

Opinion filed December 14, 2023




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-22-00125-CR
                                  __________

               CARMEN MEDINA CARMONA, Appellant
                                        V.
                    THE STATE OF TEXAS, Appellee


                     On Appeal from the 91st District Court
                           Eastland County, Texas
                         Trial Court Cause No. 25745


                     MEMORANDUM OPINION
      A jury found Appellant, Carmen Medina Carmona, guilty of the second-
degree felony offense of possession of 2,000 pounds or less but more than 50 pounds
of marihuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (West
Supp. 2023).      The jury assessed Appellant’s punishment at eight years’
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice, and the trial court sentenced her accordingly. In a single issue, Appellant
challenges the sufficiency of the evidence to prove that she intentionally or
knowingly possessed marihuana. We affirm.
                               Factual and Procedural History
       On February 24, 2020, while traveling from El Paso with her husband, Oscar
Soto, Appellant’s white 2012 Chrysler Town and Country was stopped by Texas
Department of Public Safety (DPS) Trooper Jose Astello for speeding. Prior to the
stop, Trooper Astello had received a tip to be on the lookout for a white Chevrolet
van.
       The Chrysler van belonged to Appellant. 1 Soto, the driver, was asked to step
out of the vehicle so Trooper Astello could check his driver’s license and “engage
in some conversation with him.” According to Trooper Astello, Soto appeared
“beyond nervous.” Trooper Astello testified that he could see Soto’s chest rising
through his shirt and stated that Soto had sweat on his upper lip and forehead, and
had started to develop “cotton mouth.” Trooper Astello asked Soto if there was
anything illegal in the vehicle, which Soto denied. Trooper Astello then requested
Soto’s consent to search the vehicle and his consent was given. Trooper Astello then
asked Appellant if there was anything illegal in the vehicle, which she also denied.
Appellant testified that she gave him permission to search the vehicle. During the
search, Trooper Astello discovered three large, heavy duffel bags, each containing
numerous one-pound bundles of marihuana, which totaled 160 pounds. One duffel
bag was located behind the second-row passenger seat, and the other two duffel bags
were located “in the trunk” underneath Soto and Appellant’s personal luggage.
        Soto and Appellant were arrested and taken to the DPS office in Eastland.
Billy Alexander, a Special Agent with the DPS Criminal Investigations Division,
interviewed Appellant and Soto separately. Soto told Special Agent Alexander that


       1
        During the traffic stop, Trooper Astello learned that the van had belonged to Sylvia Medina,
Appellant’s late mother. Appellant concedes that the van belonged to her and that she was present in the
van with the marihuana.
                                                       2
he was transporting the “reggie,” a “lower grade” of marihuana, to Dallas and “was
just going to see what [he] could do.” Soto stated that they left El Paso the day
before and was inconsistent regarding which day he purchased the marihuana. Soto
denied that Appellant had any knowledge of the marihuana, denied having a specific
buyer, denied supporting any specific motorcycle gang, and refused to tell Special
Agent Alexander who supplied the marihuana. During her interview, Appellant
confirmed that they had left El Paso the previous day but stated that they had stopped
in Abilene—not Big Spring as Soto had said to Trooper Astello. Appellant had
trouble remembering the name of the hotel. When Special Agent Alexander asked
Appellant whether she was with Soto when he “picked this up,” she said “no” and
that she “didn’t even know he had bad things with [them].”
      At trial, Soto testified that he was given an opportunity by a friend to make
some money by taking the marihuana to Dallas, selling it, and splitting the profits.
Soto testified that he sold his motorcycle for $5,500 to purchase the drugs and was
supposed to pay $120 per pound. He testified that he could get $400 per pound,
which would make him about $62,000. Soto testified that they go to Dallas once or
twice a month but stated that this is the first time that he tried to transport marihuana.
Soto denied that Appellant knew anything about or had anything to do with the
marihuana. Appellant also testified and continued to deny that she knew about the
marihuana and made statements that were inconsistent with the body camera
evidence admitted at trial. In regard to Soto, Appellant testified that she is “not a
naive person. Like I said, I was raised in the hood, so several times I knew [Soto]
was doing something.” Appellant also testified that she sold her vehicle for $12,000
and, shortly before their trip to Dallas, sold her jewelry for $1,600. Furthermore,
Appellant testified regarding her prior federal conviction for conspiracy to import
marihuana, stating that she committed that crime “because of her first baby daddy.”
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       Following a jury trial, the jury found Appellant guilty of possession of
marihuana. Appellant argues on appeal that the evidence was insufficient to prove
beyond a reasonable doubt that she intentionally or knowingly possessed marihuana.
                                        Analysis
       In her sole issue, Appellant contends that the evidence is legally insufficient
to support her conviction. Specifically, Appellant contends that the evidence cannot
support her conviction for possession of marihuana because Appellant did not have
the requisite mens rea, in that, she did not have any knowledge that Soto had placed
the duffel bags full of marihuana in the vehicle prior to leaving for their trip to Dallas.
       A. Standard of Review
       We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia,
443 U.S. 307
 (1979). Brooks v.
State,
323 S.W.3d 893, 912
 (Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286
,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
charged offense beyond a reasonable doubt. Jackson,
443 U.S. at 319
; Isassi v. State,
330 S.W.3d 633, 638
 (Tex. Crim. App. 2010).
      Viewing the evidence in the light most favorable to the verdict requires that
we consider all of the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State,
393 S.W.3d 763, 767
 (Tex. Crim. App. 2013); Clayton v.
State,
235 S.W.3d 772, 778
 (Tex. Crim. App. 2007). As such, we defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey,
393 S.W.3d at 768
; Brooks,
323 S.W.3d at 899
; Clayton,
235 S.W.3d at 4
778. This deference accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson,
443 U.S. at 319
; Clayton,
235 S.W.3d at 778
. We may
not reevaluate the weight and credibility of the evidence to substitute our judgment
for that of the factfinder. Dewberry v. State,
4 S.W.3d 735, 740
 (Tex. Crim. App.
1999). Therefore, if the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination. Jackson,
443 U.S. at 326
; Merritt v. State,
368 S.W.3d 516
, 525–26
(Tex. Crim. App. 2012); Clayton,
235 S.W.3d at 778
.
      Because the standard of review is the same, we treat direct and circumstantial
evidence equally. Isassi,
330 S.W.3d at 638
; Clayton,
235 S.W.3d at 778
; Hooper v.
State,
214 S.W.3d 9, 13
 (Tex. Crim. App. 2007). It is not necessary that the evidence
directly prove the defendant’s guilt. Rather, circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor and can, without more, be
sufficient to establish her guilt. Carrizales v. State,
414 S.W.3d 737, 742
 (Tex. Crim.
App. 2013) (citing Hooper,
214 S.W.3d at 13
). A guilty verdict does not require
that every fact must directly and independently prove a defendant’s guilt. Hooper,
214 S.W.3d at 13
.        Instead, the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.
Id.
 Therefore, in evaluating
the sufficiency of the evidence, we must consider the cumulative force of the
evidence. Villa v. State,
514 S.W.3d 227, 232
 (Tex. Crim. App. 2017); Murray v.
State,
457 S.W.3d 446, 448
 (Tex. Crim. App. 2015).
      B. Applicable Law: Affirmative Links
      A person commits the felony offense of possession of marihuana if that person
knowingly or intentionally possesses a useable quantity of the drug. HEALTH &
SAFETY § 481.121(a). “Possession” is defined as “actual care, custody, control, or
                                              5
management.” Id. § 481.002(38); see also TEX. PENAL CODE ANN. § 1.07(a)(39)
(West 2021). In this regard, to prove unlawful possession of a controlled substance,
the State must establish that the accused exercised care, control, or management over
the contraband and knew that the substance was contraband. Poindexter v. State,
153 S.W.3d 402, 405
 (Tex. Crim. App. 2005). The elements of possession may be
proven through direct or circumstantial evidence, but “[r]egardless of whether the
evidence is direct or circumstantial, it must establish that the defendant’s connection
with the drug was more than fortuitous.” Evans v. State,
202 S.W.3d 158, 161
 (Tex.
Crim. App. 2006).
      Appellant’s mere presence in the same place as the controlled substance is
insufficient to support a possession finding. Evans,
202 S.W.3d at 162
. But presence
or proximity, when combined with other evidence, either direct or circumstantial,
may establish possession.
Id.
      Texas courts have formulated the “affirmative links rule,” which provides that
“[w]hen the accused is not in exclusive possession of the place where the substance
is found, it cannot be concluded that the accused had knowledge of and control over
the contraband unless there are additional independent facts and circumstances
which affirmatively link the accused to the contraband.” Poindexter,
153 S.W.3d at 406
 (alteration in original) (quoting Deshong v. State,
625 S.W.2d 327, 329
 (Tex.
Crim. App. 1981)); see Evans,
202 S.W.3d at 162
 n.12 (listing affirmative links
recognized by courts); see also Tate v. State,
500 S.W.3d 410
, 413–14 (Tex. Crim.
App. 2016) (citing Evans,
202 S.W.3d at 162
 n.12). The affirmative links rule is
routinely employed to establish possession when the accused is not in exclusive
possession of the place where the drugs are found; it is designed “to protect the
innocent bystander from conviction based solely upon [her] fortuitous proximity to
someone else’s drugs.” Poindexter,
153 S.W.3d at 406
. “This rule simply restates
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the common-sense notion that a person—such as a father, son, spouse, roommate,
or friend—may jointly possess property like a house but not necessarily jointly
possess the contraband found in that house.”
Id.
      The following links have been applied to infer knowledge that relate to the
possession of contraband:
      (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 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.
Tate,
500 S.W.3d at 414
 (quoting Evans,
202 S.W.3d at 162
 n.12). It is not the
number of identified links that is dispositive; rather, it is the logical force of all of
the evidence, both direct and circumstantial, that is the determining factor. Evans,
202 S.W.3d at 162
.
      C. Sufficiency of the Evidence
      Here, Appellant argues that she does not meet some of the affirmative links
identified above. Specifically, Appellant contends that there is no evidence of the
marihuana being in plain view, that neither she nor Soto were under the influence or
that there was an odor of marihuana, that she made any incriminating statements,
any attempts to flee, or furtive gestures, that she possessed large amounts of cash or
that her conduct indicated a consciousness of guilt. But many of the links are present
                                               7
and weigh in favor of an inference that Appellant had actual care, custody, control,
or management of the marihuana and knew the substance was marihuana. For
example, Appellant admits that “the van belonged to Appellant and [that she] was
present in the van with the marihuana, [though] Appellant was not driving.”
Appellant was present at the time the marihuana was discovered and was in close
proximity to the marihuana, one seat away from the closest duffel bag. Thus, she
had access to the location where it was found. See, e.g., Black v. State,
411 S.W.3d 25, 29
 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (sufficient affirmative links
where defendant was owner and driver of vehicle at the time marihuana was
discovered in the trunk); Cisneros v. State,
290 S.W.3d 457, 467
 (Tex. App.—
Houston [14th Dist.] 2009, pet. dism’d) (evidence was sufficient to affirmatively
link defendant to marihuana where, among other things, defendant owned and was
driving the vehicle at the time the marihuana was discovered). Moreover, the duffel
bags were not secured by a lock and Appellant had access to all compartments in the
vehicle during the drive and during any stops, including their overnight stop. The
jury was allowed to view the marihuana itself during the trial. And while Appellant
was not found with a large amount of cash, Appellant testified that she sold her
vehicle for $12,000 and, less than a week before the trip, sold $1,600 worth of
jewelry. Those amounts, in combination with the $5,500 Soto received for the sale
of his motorcycle for the marihuana purchase, are more consistent with the value the
pair could receive for that large quantity of marihuana—a quantity that Special
Agent Alexander testified was worth anywhere between $75,000 and $750,000.
Finally, when Trooper Astello located the marihuana, Appellant did not seem
surprised by the discovery or by her arrest.
      Appellant also testified regarding her experience with importing and
transporting marihuana, stating that she was “caught in the bridge bringing dope
                                               8
from Juarez to El Paso.” Her prior federal drug conviction was a similar offense to
the one with which she was convicted and is relevant to her knowledge and intent;
it further reduces the possibility that possession and/or transport of marihuana in this
instance was done unknowingly with innocent intent. See Hung Phuoc Le v. State,
479 S.W.3d 462
, 470–71 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing
Plante v. State,
692 S.W.2d 487
, 491–92 (Tex. Crim. App. 1985)).
      The jury was the sole judge of the witnesses’ credibility—including
Appellant’s—and the weight their testimony was to be afforded. See Winfrey,
393 S.W.3d at 768
; Brooks,
323 S.W.3d at 899
; Clayton,
235 S.W.3d at 778
. Therefore,
we defer to the jury’s credibility and evidentiary weight determinations and give due
deference to their resolution of conflicts in the testimony, the weight they gave the
evidence, and the reasonable inferences they drew from such testimony and
evidence. See Jackson,
443 U.S. at 319
; Clayton,
235 S.W.3d at 778
. In this regard,
although Appellant claims she did not know about the three large, heavy duffel bags
containing 160 pounds of marihuana, she was present in the vehicle for a long time
during the drive from El Paso to Eastland County and the bulky duffel bags
containing the marihuana were in plain view. The volume and weight of marihuana
in three large and heavy duffel bags in the interior of the vehicle is not something
that was hidden, nor was their presence easily ignored, particularly when Appellant
stated it was only a two-day trip; the couple rode together from El Paso; spent the
night elsewhere before driving to Eastland County; and the couple’s personal
luggage was on top of two of the duffel bags. In light of the evidence presented, we
cannot say that it would be unreasonable for the jury to have disbelieved Appellant’s
testimony when she testified that she “didn’t see no other bags.” As we have said,
Appellant herself testified that “I’m not a naive person. I -- like I said, I was raised
in the hood. So several times [in the past] I knew [Soto] was doing something, but
                                              9
he wouldn’t admit it.” It is not unreasonable for a jury to have deduced that
Appellant would have noticed and known of the presence of three duffel bags in her
vehicle and for the jury to conclude that the contents of the proverbial “elephants in
the room”—three large, bulky, heavy duffel bags close in appearance that contained
marihuana—would have been known to, controlled, and possessed by Appellant.
      Based on our review of all of the evidence in the light most favorable to the
verdict, we conclude, in view of that testimony and evidence presented at trial, that
the jury could have found the essential elements of the charged offense beyond a
reasonable doubt, and we cannot conclude that their decision was based solely on
Appellant’s mere presence in the same place as the marihuana. The logical force of
all the evidence shows that Appellant had care, custody, control, and unfettered
access to the vehicle and the duffel bags containing the marihuana and that she knew
the duffel bags contained contraband. The cumulative force of all the incriminating
circumstances is sufficient to support the conviction. We overrule Appellant’s sole
issue on appeal.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                               W. BRUCE WILLIAMS
                                               JUSTICE


December 14, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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