ELVIN OMAR VASQUEZ v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Francis

Elvin Omar Vasquez appeals his convictions for possession with intent to deliver four grams or more but less than 200 grams of cocaine and methamphetamine, possession of five pounds or less but more than four ounces of marijuana, and two counts of delivery of one gram or more but less than four grams of cocaine.   After finding appellant guilty of all five offenses, the jury assessed punishment at thirty years in prison for each possession with intent to deliver offense, two years in state jail for the possession of marijuana offense, and fifteen years in prison for each delivery of cocaine offense.   In eight issues, appellant contends the evidence is legally insufficient to support the three possession convictions and the judgments must be reformed to correct certain information.   We modify the five judgments to correct the name of the State's trial attorney, Hector Valle.   As reformed, we affirm the trial court's judgments.

In his last three issues, appellant claims the evidence is legally insufficient to support his convictions for possession with intent to deliver cocaine and methamphetamine, and possession of marijuana.   Appellant contends there is no evidence to “affirmatively link” him to the contraband.

When addressing a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979).   We give deference to “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.”  Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007).   The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and is free to accept or reject any or all evidence presented by either side.   See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008).

A person commits a first degree felony offense if he possesses with intent to deliver four grams or more but less than 200 grams of cocaine or methamphetamine.  Tex. Health & Safety Code Ann. §§ 481.102, (3)(D), (6), 481.112(a), (d) (West 2010).   A person commits a state jail felony offense if he possesses five pounds or less but more than four ounces of marijuana.   Id. § 481.121(b)(3).   To support convictions for unlawfully possessing narcotics, the State must prove the accused exercised actual care, custody, control, or management over the substance and knew the matter possessed was contraband.   Id. § 481.002(38);  Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006).   This evidence may be direct or circumstantial but it must establish the accused's connection with the drug was more than fortuitous.   Evans, 202 S.W.3d at 162.

Because appellant was not in exclusive possession of the place where the contraband was found, the State must offer additional independent facts and circumstances linking him to the contraband.  Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005);  Taylor v. State, 106 S.W.3d 827, 830–31 (Tex.App.—Dallas 2003, no pet.).   It is not the number of links that is dispositive, but the logical force of all of the evidence, direct and circumstantial, that supports a jury's verdict.   See id. at 166;  Taylor, 106 S.W.3d at 831.

The record shows appellant sold cocaine twice to undercover narcotics officer, Andrew Bah, at an apartment on Finley Road in Irving.   Before the first sale, Bah called appellant who told Bah to come to “his apartment.”   When Bah approached, appellant opened the door and let him in.   Another man identified as “Joe” was also there.   Appellant sold Bah 1.3 grams of cocaine and offered to sell him some methamphetamine, but Bah declined and left.   About a month later, Bah went back to the apartment and bought more cocaine.   This time, appellant offered to sell him some marijuana but the officer again declined.   During each purchase, Bah wore a wire to record his conversations with appellant.

After the second purchase, Bah executed search and arrest warrants.   The Irving police department SWAT team executed the warrants, entering the apartment and arresting appellant.   The officers then searched the apartment.   Bah noted there was “not much to search in the living room, [and] kitchen.”   The bedroom smelled of marijuana.   In the bedroom closet, the officers found, in plain view, marijuana, cocaine, methamphetamine, and working drug scales sitting on the floor.   The drugs were packaged for sale and laid out “almost as if someone had inventory ․ ready to do business.”   In the same closet, they also found clothing that appeared to fit appellant, a duffel bag containing appellant's ID and $1,848 in cash (including at least one of the bills Bah used to buy cocaine from appellant), and some Western Union receipts indicating appellant had wired money to someone.   Appellant's cell phone was in the hot water heater closet in the bedroom, and the cell phone charger was next to the bed.   His cell phone bill was in the living room and showed a different address than that of the apartment.   Appellant's cell phone had a failed text message:  “I got some corn.”   Bah explained that “corn” was a popular name for marijuana.

Appellant's name was not on the apartment lease.   Bah said it was not uncommon, particularly in Irving, for one person to lease an apartment and another one to sell drugs from the apartment.   He explained that the City of Irving had pressured area apartment complexes to rent to people who do not have criminal histories;  as a result, people with bad credit or long criminal histories often had others rent apartments for them.   In Bah's opinion, appellant had care, custody, and control of the apartment and its contents which included 61 grams of cocaine, 11 grams of methamphetamine, and 5.83 pounds of marijuana.   Appellant did not present any evidence at trial.

The record shows several links between appellant and the contraband.   Appellant sold cocaine twice to an undercover police officer at the apartment.   He was in the apartment when police executed the warrant.   He was present when police found large quantities of cocaine, methamphetamine, and marijuana.   The drugs were in plain view.   Appellant had close access to the drugs.   A large amount of cash was found in the duffel bag along with appellant's ID in the bedroom closet, indicating appellant stayed at the apartment.   See Evans, 202 S.W.3d at 162 n. 12.   After reviewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient for any rational jury to find beyond a reasonable doubt that appellant had care, custody, control, or management over the contraband.   We overrule appellant's last three issues.

In his first five issues, appellant claims we must reform the trial court's judgments to accurately reflect the name of the State's trial attorney.   The State agrees.

We have the authority to correct the judgments of the court below to make the record “speak the truth” when we have the necessary data and information to do so.  Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.App.—Dallas 1991, pet. ref'd).   The judgments currently show the attorney for the State is “Hactor Valle.”   The reporter's record, appellant, and the State note the correct spelling of the attorney's name is “Hector Valle.”   We sustain appellant's first five issues and modify the judgments in each of these cases to reflect “Hector Valle” as the attorney for the State.

We affirm the trial court's judgments as modified.

MOLLY FRANCIS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110221F.U05

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Court of AppealsFifth District of Texas at DallasJUDGMENT

ELVIN OMAR VASQUEZ, Appellant

No. 05–11–00221–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35051–Q).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered June 8, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ELVIN OMAR VASQUEZ, Appellant

No. 05–11–00222–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35052–Q).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered June 8, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ELVIN OMAR VASQUEZ, Appellant

No. 05–11–00223–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35053–Q).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered June 8, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ELVIN OMAR VASQUEZ, Appellant

No. 05–11–00224–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35054–Q).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered June 8, 2012.

/Molly Francis/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ELVIN OMAR VASQUEZ, Appellant

No. 05–11–00225–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 204th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–35055–Q).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered June 8, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

MOLLY FRANCIS JUSTICE