Full Opinion (html_with_citations)

                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                       No. 07-23-00046-CR


                         ARMEN ALEX GRIGORYAN, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 31st District Court
                                   Wheeler County, Texas
                 Trial Court No. 5536, Honorable Steven R. Emmert, Presiding

                                      December 21, 2023
                               MEMORANDUM OPINION
                    Before QUINN, C.J., and DOSS and YARBROUGH, JJ.


       Following a plea of not guilty, Appellant, Armen Alex Grigoryan, was convicted by

the trial court of money laundering with funds valued at $30,000 or more but less than

$150,000, a third degree felony.1 He was sentenced to eight years’ confinement and

assessed an $8,000 fine. Appellant challenges his conviction by three issues contending

(1) the evidence is insufficient, (2) trial counsel was ineffective, and (3) he was denied a



       1 TEX. PENAL CODE ANN. § 34.02(e)(2).
fair trial by not having a neutral and detached factfinder. The State did not favor this Court

with a brief. We reverse and render.


                                             BACKGROUND


        Appellant and his father, originally from Armenia, reside in California. Appellant is

the general manager of his father’s profitable automotive oil distribution business. In

November 2021, he and his father traveled to Arkansas in a van belonging to Appellant’s

brother to hire contractors for an investment property.2 After they arrived in Arkansas,

Appellant’s wife called him and insisted he return home for Thanksgiving. Complying with

his wife’s request, Appellant left his father in a motel and began the drive to California on

Interstate 40. While traveling through Wheeler County, Texas, he was stopped for a traffic

violation. Appellant stopped the van beyond the shoulder of the road near a ditch.


        The deputy who initiated the stop became suspicious Appellant was involved in

human trafficking because he was the sole passenger in a van. He began issuing a

warning for the traffic violation and questioned Appellant about his travels and whether

he had anything illegal with him or any amounts of money. According to the deputy,

Appellant told him he was traveling from Arkansas to California, disclosed he had

approximately $2,000 to $3,000 in cash, and denied having any contraband. Appellant

explained he traveled with cash because his bank card was sometimes inoperable.


        After the deputy issued the warning, he asked if he could search the van to which

Appellant consented without hesitation. The deputy’s suspicion was piqued because



        2 Appellant testified he accompanied his father because of his health issues and inability to speak

English well.
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Appellant had pulled off the road beyond the pavement which he described as “highly

abnormal from the motoring public.” He was also suspicious of air fresheners in the van,

and he doubted Appellant’s travel itinerary.


      During a search of the van at the scene, the deputy observed an empty mini-fridge,

a bag of chips, food wrappers, blankets, an air mattress, and two five-gallon trash bags

in the rear of the van which contained clothing and cash totaling $122,000. The cash was

bundled by rubber bands.         Based on his training and experience, the deputy read

Appellant his rights and arrested him for money laundering.


      Appellant and the van were transported to the jail. A secondary search of the van

revealed $2,000 behind the driver’s seat which Appellant had previously disclosed, but

he denied any knowledge of the cash in the trash bags.


      A K-9 deputy and his trained narcotics dog were asked to “run a money line” which

involved placing the confiscated cash in various boxes to determine whether the odor of

narcotics was present on the cash. The dog did not alert on any of the boxes.


      The dog was then tasked with detecting the odor of narcotics on the exterior of the

van.3 The K-9 deputy testified the dog “showed interest” by the back passenger door and

rear fender wheel area. He explained that a positive alert indicated narcotics were in the

van at some point. However, no drugs, paraphernalia, or illegal contraband were found

in the van or on Appellant.




      3 The van was in an enclosed sally port at the time of the K-9 search.

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        Appellant was indicted for “knowingly possess[ing] the proceeds of criminal

activity, namely selling a controlled substance . . . .” (Emphasis added). At a bench trial,

the State presented the arresting deputy as a witness and the K-9 deputy as an expert

witness. The arresting deputy, constantly prefacing his answers with his “training and

experience” and “totality of the circumstances,”4 testified that traveling on Interstate 40, a

known drug corridor, with air fresheners, food wrappers, blankets, and a large amount of

cash were indicators of drug trafficking. He also disbelieved Appellant’s reason for

traveling between California and Arkansas in a short period of time. During cross-

examination, however, he conceded it was not illegal to drive with air fresheners, possess

bundled cash, or travel along Interstate 40 between California and Arkansas. He also

conceded that at the time of the stop, he was merely suspicious. He agreed he did not

find any indicia of drug dealing such as ledgers, scales, or baggies, and Appellant was

not in a suspicious place at the time of his arrest.


        The K-9 deputy, testifying as an expert for the first time, explained his dog’s training

and confirmed the dog did not alert on the money line but did alert on the exterior of the

van. During cross-examination, when asked if a positive alert on the van could distinguish

between possession or sale of narcotics, the deputy answered, “so my K-9 alerting on the

vehicle would not indicate that he was in possession, transporting, selling, consuming.”


        Appellant testified in his own defense. When he and his father began their journey,

his father loaded the van first and then picked him up. Appellant was unaware of the



        4 “Totality of the circumstances” was invoked over a dozen times prompting defense counsel to ask

that the record reflect the prosecutor was coaching the deputy by nodding his head and in a separate
instance stating “you can say totality of the circumstances all you want. I’m sure you talked to counsel
about that.”
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trash bags of cash when he loaded his belongings which were in a plastic grocery type

bag. He believed the cash in the trash bags belonged to his father because his father

distrusted banks and needed cash to hire contractors in Arkansas.5 He explained he was

in Arkansas for only a short time because his wife insisted he return to California for

Thanksgiving.


      Appellant’s father, through a translator, testified and claimed ownership of the cash

bundled in rubber bands. He explained he bought the property in Arkansas as an

investment and planned to hire contractors to develop the property.


      At the conclusion of the testimony, the trial court found Appellant guilty. After a

very brief punishment phase, the trial court sentenced Appellant to eight years’

confinement and assessed an $8,000 fine.


ISSUE ONE—SUFFICIENCY OF THE EVIDENCE


      Appellant contends his conviction for money laundering is based on mere

speculation regarding a large amount of cash rendering the evidence insufficient to

support his conviction. We agree.


      The State was required to prove Appellant knowingly possessed proceeds of

criminal activity in an amount of $30,000 or more but less than $150,000. TEX. PENAL

CODE ANN. § 34.02(a)(1), (e).          “Proceeds” are funds acquired or derived directly or

indirectly from, produced through, or realized through some criminal activity. § 34.01(4).




      5 Appellant’s father’s distrust was the result of financial dealings with banks in Armenia.

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“Criminal activity” is defined as any offense, including a preparatory offense, classified as

a felony. Id. at (1)(A).


       The only standard a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia,
443 U.S. 307, 319
,
99 S. Ct. 2781
,
61 L. Ed. 2d 560
 (1979). See Adames v. State,
353 S.W.3d 854, 859
 (Tex. Crim. App. 2011); Brooks v. State,
323 S.W.3d 893, 912
 (Tex. Crim. App.

2010). We consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, any

rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Queeman v. State,
520 S.W.3d 616, 622
 (Tex. Crim. App. 2017).


       We give deference to the responsibility of the trier of fact to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jenkins v. State,
493 S.W.3d 583, 599
 (Tex. Crim. App. 2016). Each

fact need not point directly and independently to the appellant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.
Id.


       Appellant relies heavily on this Court’s decision in Deschenes v. State,
253 S.W.3d 374, 386
 (Tex. App.—Amarillo 2008, pet. ref’d), in which the appellant’s conviction was

reversed and a judgment of acquittal rendered under strikingly similar circumstances.

Deschenes was driving a rental car and was stopped for speeding on Interstate 40, a

route known by the trooper to be used by drug smugglers.
Id.
 at 376–77. The trooper

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became suspicious when he observed empty beverage containers and food wrappers

which gave the car’s interior a “lived-in” look. He also detected Deschenes was nervous.

He disbelieved Deschenes’s travel destination.                  After he was issued a warning,

Deschenes gave consent for a search of the car. No evidence of drugs or contraband

was found in the car’s interior but when the trooper searched the trunk of the car, he

observed three pieces of luggage—one contained clothing and hygiene items, a second

was empty, and a smaller bag contained bundles of cash held together by rubber bands.

Appellant admitted, “Okay, I lied.”
Id.
 The trooper also found scales in one of the bags.
Id. at 377
. A DPS canine was called to run the car. The canine did not alert to the interior

or exterior but did alert to the small bag containing the cash and the large empty bag.
Id.

Deschenes was arrested and convicted for money laundering.


        During trial, the State referenced “drug trafficking” and “drug smuggling” but did

not connect Deschenes and the cash to an identified felony.6
Id. at 378
. To prove its

case, the State relied on the trooper’s testimony that drug proceeds “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.”
Id. at 381
. This

Court found the trooper’s testimony “speculative” and without probative value without a

connection between the cash and drug trafficking.
Id.
 For a money laundering conviction

to stand, “there must be direct or circumstantial evidence of a temporal connection, or

nexus, between the money and some criminal activity.”
Id.




          6 The indictment charging Deschenes was defective because it did not specify a particular felony,

but he waived the issue on appeal. At trial, however, the State argued the cash came from “sales and
trafficking in narcotics.” Deschenes,
253 S.W.3d at 380
.
                                                    7
        As in the case before us, in Deschenes, the State relied on numerous profiling

characteristics and a positive alert by a narcotics canine to establish a connection

between the cash and criminal activity. This Court found such “evidence” to be mere

conjecture.”
Id.
 at 382–83. No credible evidence was presented to infer Deschenes was

involved in a drug transaction, sale, or delivery at or around the time of his arrest for

money laundering.
Id. at 385
. He had no prior conviction related to drugs, no relationship

with drug trafficking, and he did not attempt to hide the cash in packaging designed to

prevent its detection.
Id.


        In the underlying case, the State similarly used profiling characteristics to justify

charging Appellant with money laundering. Unlike the scales found in Deschenes and

his admission that he lied, here, the arresting deputy admitted Appellant told the truth

about the $2,000 that was found behind the driver’s seat and that he was not carrying

anything illegal in the van. Thus, the evidence in this case is weaker than the evidence

presented in Deschenes.7


        Appellant testified the van belonged to his brother and he used it “just a little bit.”

He testified he has never been involved in the narcotics business. He acknowledged a

misdemeanor theft conviction in 2003 but did not have any felony convictions. The K-9

deputy testified the positive alert on the van did not indicate Appellant was involved in the

sale of narcotics—the specific offense charged as the criminal activity element of money




        7 Under the doctrine of horizontal stare decisis, this Court must follow materially indistinguishable

decisions of earlier panels of the same court unless a higher authority has superseded that prior decision.
See Mitschke v. Borromeo,
645 S.W.3d 251
, 256 (Tex. 2022). Deschenes has not been superseded by
this Court or the Court of Criminal Appeals.
                                                     8
laundering. The State failed to prove beyond a reasonable doubt a nexus between the

cash found in the trash bags and the sale of narcotics. Appellant’s first issue is sustained.


       Our disposition of issue one pretermits consideration of his remaining two issues.


                                       CONCLUSION


       The trial court’s judgment is reversed, and a judgment of acquittal is hereby

rendered.



                                                         Alex Yarbrough
                                                             Justice

Do not publish.




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