                             NUMBER 13-14-00378-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

AROLODO DAVID AGUILAR
A/K/A AROLDO DAVID AGUILAR,                                                           Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                   Appellee.


                        On appeal from the 9th District Court
                          of Montgomery County, Texas.


                             MEMORANDUM OPINION
               Before Justices Benavides, Perkes and Longoria
                  Memorandum Opinion by Justice Perkes1




        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
       Appellant Arolodo David Aguilar, a/k/a Aroldo David Aguilar appeals his conviction

of possession with intent to deliver/manufacture a controlled substance, enhanced by two

prior felony convictions.    See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West,

Westlaw through 2015 R.S.). A jury found appellant guilty and the trial court assessed

punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional

Division. See TEX. PENAL CODE ANN. § 12.42(c) (West, Westlaw through 2015 R.S.) By

two related issues, appellant argues: (1) the evidence is legally insufficient to support

the jury’s verdict; and (2) the evidence is legally insufficient to establish an affirmative link

between appellant and the cocaine. We affirm.

                                     I.     BACKGROUND

       Jose Vazquez, his brother Angel Vazquez, and Lauro Rincon met with an

undercover Drug Enforcement Agency (DEA) agent at the Downtowner Motel in Houston

in an effort to arrange the sale of twenty kilos of cocaine. Photographs of the meetings

show Jose in possession of a black duffel bag.            At the motel, undercover officers

provided Jose, Angel, and Rincon with a black SUV equipped with hidden compartments

to transport the cocaine. State and federal officers then followed the Vazquez brothers

to a house on Laura Lane in Montgomery County. Photographs of the house showed

the black SUV parked near a maroon van. Aerial surveillance revealed several men,

including appellant, standing in the background of the Laura Lane house, then going

inside the house. While Angel was at the house, he sent a picture of three kilos of

cocaine on a blue bedspread to an undercover Houston police officer. Angel and Rincon




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then met with agents at a local restaurant to finalize the sale of the cocaine, but the

meeting turned confrontational and the deal fell through.

       Agents then learned that a maroon van, possibly carrying drugs, was leaving the

stash house and alerted Montgomery County Sheriff’s Deputy Ken Wakefield. Deputy

Wakefield spotted the van, and when he noticed the van’s missing front license plate, he

initiated a traffic stop. Appellant was driving the van while its registered owner, Rolando

Gutierrez, was in the front passenger seat. Gutierrez explained that he was the owner

of the van, but that appellant was driving since he did not have a license. Jose Vazquez

was seated behind them, near two suitcases and a black duffel bag.

       According to Wakefield’s testimony, the three men appeared to be “fairly nervous,”

and when Wakefield asked a “general question,” they “looked around like they were trying

to come up with an answer.” Wakefield then briefly questioned appellant, who said that

he was “just looking for cars” to sell, and when asked about “this guy here”—presumably

Jose Vazquez—he said that the man “came with us” and that they knew him “from the

valley.” Appellant agreed with Wakefield that they were “driving around randomly looking

for cars,” and when asked if they checked “newspapers or what,” he responded, “yea,

garages and things.” Gutierrez told Wakefield that he was related to appellant, that they

both arrived in the Houston area one day before, and that they both had known Vazquez

for a long time. Vazquez, however, claimed that he only met Gutierrez and appellant

recently.   When Officer Wakefield asked Vazquez what they were up to, Vazquez

replied, “Uh, trouble with my wife, job, friend[’]s idea. . . [d]o something different.” He




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elaborated that he was “waiting for a friend, he [sic] come and pick me up . . . [w]e gonna

[sic] see a few thing, I don’t know too much about this.”

       Wakefield was suspicious of the men’s stories, and Gutierrez gave Wakefield

consent to search the van. The suitcases contained clothes, but the black duffel bag

contained ten individually wrapped kilo packages of cocaine. Several of the packages

were sealed with black shrink wrap and marked with a sticker of a cartoon animal.

Appellant had $90 in cash on his person, in addition to two Visa cards; Vazquez had

$1.05 and a one-way bus ticket from McAllen, purchased on February 20, 2013; and

Gutierrez had $610 in cash. The search also revealed numerous cell phones and SIM

cards; however, none of the devices showed that appellant communicated with any of the

men electronically. Officers searched the house on Laura Lane, but did not recover any

cocaine. Officers did find, however, duct tape and other packing materials, scales, and

a blue bedspread similar to the one seen in the photograph of the cocaine.2

                                        II.     DISCUSSION

       By two issues, appellant argues that “the evidence is legally insufficient, if, upon

reviewing the evidence in the light most favorable to the verdict, no rational juror could

have believed beyond a reasonable doubt that appellant is guilty of Possession of a

Controlled Substance,” and, “the evidence is legally insufficient, to establish an affirmative

link between appellant and the cocaine.” Appellant’s arguments pertain only to the




       2 At approximately the same time as Wakefield’s stop of the maroon van, officers arrested Angel

and Rincon and took possession of the black SUV. There is no testimony that any drugs or other evidence
was present in the black SUV.
                                                  4
element concerning whether he possessed the controlled substance. As such, we limit

our appellate review to that issue.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,

323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). “The jury is the exclusive

judge of the credibility of the witnesses and of the weight to be given testimony, and it is

also the exclusive province of the jury to reconcile conflicts in the evidence.” Wesbrook

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones v. State, 944

S.W.2d 642, 647 (Tex. Crim. App. 1996) (en banc)).            Juries are permitted to make

reasonable inferences from the evidence presented at trial, and circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor. Hooper v. State,

214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

(en banc)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for


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which the defendant was tried. Id. In order to convict appellant of possession with

intent to deliver, the State must prove appellant: (1) exercised care, custody, control, or

management over the controlled substance; (2) intended to deliver the controlled

substance to another; and (3) knew that the substance in his possession was a controlled

substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a)–(f) (West, Westlaw

through 2015 R.S.).

B.     Applicable Law

       The State may prove possession by direct or circumstantial evidence, and “it must

establish, to the requisite level of confidence, that the accused’s connection with the drug

was more than just fortuitous.” Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim.

App. 2005) (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en

banc)).   When 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 additional independent facts and circumstances affirmatively

link the accused to the contraband. Id. (citing Deshong v. State, 625 S.W.2d 327, 329

(Tex. Crim. App. 1981)). An affirmative link may be established through either direct or

circumstantial evidence. Brown, 911 S.W.2d at 747.

       Texas courts have recognized the following links as being sufficient, either singly

or in combination, to establish a person’s possession of contraband: (1) the defendant’s

presence when a search was conducted; (2) whether the contraband was in plain view,

Hughes v. State, 612 S.W.2d 581, 582 (Tex. Crim. App. 1981); (3) whether the

contraband was recovered from a hidden location accessible only to one who exercised


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control over the house or car, Mendoza v. State, 583 S.W.2d 396, 397 (Tex. Crim. App.

1979); (4) the defendant’s proximity to and the accessibility of the narcotics; (5) whether

the defendant was under the influence of narcotics when arrested; (6) whether the

defendant possessed other contraband or narcotics when arrested; (7) whether the

defendant made incriminating statements when arrested; (8) whether the defendant

attempted to flee; (9) whether the defendant made furtive gestures; (10) whether there

was an odor of contraband; (11) whether other contraband or drug paraphernalia were

present; (12) whether the defendant owned or had the right to possess the place where

the drugs were found; (13) whether the place where the drugs were found was enclosed;

(14) whether the defendant was found with a large amount of cash; and (15) whether the

conduct of the defendant indicated a consciousness of guilt. Evans v. State, 202 S.W.3d

158, 161–62 (Tex. Crim. App. 2006). Although several factors relevant to establishing

an affirmative link may have been identified, the number of factors actually supported by

the evidence is not as important as the “logical force” they collectively create to prove that

a crime has been committed. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—

Houston [1st Dist.] 2002, pet ref’d) (quoting Whitworth v. State, 808 S.W.2d 566, 569

(Tex. App.—Austin 1991, no pet.)).

C.     Analysis

       Appellant argues that the only factors linking him to the cocaine was that he was

the driver of the van and was present when the cocaine was discovered.3 Appellant

reasons that without any other factors, mere presence is not enough to establish care,



       3   It is undisputed that appellant did not own the van where the drugs were found.
                                                     7
custody, and control. Appellant contends that the cocaine was found in a black duffel

bag in the back seat next to Jose—presumably the same black duffel bag Jose was

carrying at the Downtowner Motel. He claims that because the cocaine was located in

the backseat and in a duffel bag, the cocaine was not readily accessible. Appellant

further contends that there is no evidence that he was present at any of the previous

meetings between the agents and Rincon and Angel, and that there is no evidence: (1)

that he was under the influence of drugs when he was arrested; (2) that he possessed

contraband or other narcotics when he was arrested; (3) that he made incriminating

statements, that he attempted to flee; or (4) that he made furtive gestures.

       While we agree with appellant that certain “affirmative links” are not applicable in

this case, we disagree with his conclusion that the State failed to link him to the cocaine.

We must examine each case on its own facts. Hurtado v. State, 881 S.W.2d 738, 743

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). A factor tending to establish sufficiency

in one set of facts may be of little value in another set of facts. Robinson v. State, 174

S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

       The State’s first link came through testimony from police officers explaining that

the cocaine was packaged for transport and sale by a sophisticated drug trafficking

organization (DTO). Houston Police Officer Jose Benavides explained that Houston is

the main “corridor” for drugs coming from Mexico. That the large amount of cocaine was

recovered near the Houston area and packaged in kilogram bricks could lead to a rational

conclusion that the cocaine was meant for distribution in other markets.




                                             8
       Next, DEA Special Agent Joel Saldana and Officer Benavides testified that DTOs

were generally distrustful of outsiders, and would not have allowed someone unfamiliar

with the prospective transaction—and the existence of some $300,000 worth of cocaine—

to drive a vehicle containing such a large amount of cocaine. Based on the testimony

from the experienced police officers, a rational juror could have concluded that the DTO

responsible for bringing ten kilograms of cocaine for sale would never involve an

unaffiliated third party in the transportation of the valuable load.

       The State also linked appellant to the cocaine through his relationship with Jose

Vazquez. Jose Vazquez was present when Angel Vazquez and Rincon negotiated with

an undercover officer for the cocaine sale and took possession of the black SUV rigged

with secret compartments. Later, video surveillance showed appellant in the backyard

of the house on Laura Lane with Jose Vazquez and Gutierrez. When questioned by

Officer Wakefield, Gutierrez, appellant, and Jose Vazquez gave inconsistent stories about

how long they knew each other, and what they were doing. Appellant’s and Vazquez’s

conflicting statements demonstrate an attempt to conceal their activities and the real

reason they came to Montgomery County. In other words, their conflicting statements

were meant to distance themselves from the crime. See Robinson v. State, 174 S.W.3d

320, 328 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (“[I]nconsistent statements raise

the inference that they were engaged in illegal activity—here, the possession of cocaine

with the intent to deliver—that establishes a connection to appellant’s knowledge of the

presence of the cocaine.”); see also Duff v. State, 546 S.W.2d 283, 288 (Tex. Crim. App.

1977) (differing stories, coupled with other circumstantial evidence, are a “circumstance


                                              9
implying guilt”). We conclude that appellant’s and Vazquez’s inconsistent statements

raise the inference they were engaged in illegal activity that establishes a connection to

appellant’s knowledge of the presence of the cocaine. See Robinson, 174 S.W.3d at

328.

       Finally, the State linked appellant to the possession of the cocaine based on the

amount confiscated by police.       The amount of contraband may be effective at

establishing an affirmative link when large quantities are involved. Id. (two kilograms of

cocaine indicates affirmative link); see Villegas v. State, 871 S.W.2d 894, 897 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d) (finding quantity of contraband sufficient to

establish affirmative link in a case involving seizure of 90 pounds of cocaine and 165

pounds of marijuana). Agent Saldana testified that the cocaine purchase he negotiated

was for twenty kilograms of cocaine at $35,500 per kilogram. Using this testimony, ten

kilograms of cocaine is worth $355,000. We consider the ten kilograms of cocaine a

significant amount and too much for mere personal use. Thus, the amount of cocaine is

strongly indicative of an affirmative link between it and appellant. See Robinson, 174

S.W.3d at 329.

       In summary, appellant was driving a van found to be transporting ten kilograms of

cocaine worth more than three hundred thousand dollars.         Appellant’s travel to the

Houston area, ostensibly to purchase cars, coincided with a major drug purchase

orchestrated by one of the van’s passengers, Jose Vazquez. Vazquez was involved with

a drug trafficking organization moving contraband through the Houston area. When

asked about their travels, appellant and Vazquez gave conflicting accounts.           We


                                           10
conclude that the evidence was legally sufficient to affirmatively link appellant to the

cocaine. We further conclude that a jury could have found beyond a reasonable doubt

that appellant exercised actual care, custody, control, or management of the cocaine.

See id. Appellant’s two issues are overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of May, 2016.




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