
NO. 07-08-0273-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 11, 2010
______________________________

CRAIG D. ROSS, 

                                                                                                 Appellant

v.

THE STATE OF TEXAS, 

                                                                                                 Appellee

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-415,034; HON. CECIL G. PURYEAR, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Craig D. Ross (appellant) appeals his conviction for possession with intent to deliver
a controlled substance.  Through two issues, he contends that the evidence is insufficient
to support his conviction and the trial court abused its discretion by allowing the State to
continue questioning appellant’s co-defendant after she invoked her Fifth Amendment right
not to testify.  We affirm.
 
Background
          Officer Shane Bledsoe (Bledsoe) with the Lubbock Police Department testified that
on the night of December 9, 2006, he arrested appellant for possession of a controlled
substance with the intent to deliver.  He made contact with appellant for failing to use his
turn signal and for making a wide right turn; however, appellant took longer than usual to
stop his vehicle.  Upon approaching the vehicle, Bledsoe observed appellant, in the driver’s
seat, and a passenger, Valerie Padilla (Padilla).  The latter was in the front passenger seat. 
The officer smelled marijuana coming from the car.  So, he ordered appellant to step out
of the car and patted him down for weapons.  Appellant was found to be in possession of
$837.00 and then was placed in the backseat of Bledsoe’s patrol car without handcuffs.
Bledsoe went back to the car and had Padilla exit it.  She was wearing a large coat that the
officer had her remove.  When that was done, he patted her down, along with the coat.
While doing so, the officer felt a baggie in the right pocket of the coat.  Upon inspection,
he noticed that it contained what he believed to be crack cocaine.   This resulted in Padilla
being arrested and placed in another officer’s car.  
          A search of the car unearthed a 6.5 ounce baggie of marijuana in the middle
console.  This resulted in appellant’s arrest and transportation to jail.  While being
transported and after realizing that Padilla had been arrested too, appellant said to the
officer: “you know all that shit is mine.”  Appellant also stated that she knew nothing of the
drugs.
          The State called Padilla to testify at trial.  However, she invoked her Fifth
Amendment right against self-incrimination.  Despite this, the State continued to propound
questions to her about prior statements made by her.  Those statements purportedly
involved appellant’s tossing the baggie of cocaine to her when the police stopped him and
about the cocaine and marijuana not belonging to her.   
Issue One - Sufficiency of the Evidence to Link the Controlled Substance
          In his first issue, appellant contends the evidence is insufficient to link him to the
drugs found.  This is so because the drugs were found in the passenger’s coat pocket.  We
overrule the issue.
          AuthorityThe standards of review for legal and factual sufficiency are found in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204
S.W.3d 404 (Tex. Crim. App. 2006).  We refer the parties to those cases for review.
          In addition to appellant’s statement to the officer that the “shit” or drugs were his,
other evidence revealed that 1) appellant was present in the car where the drugs were
found, 2) the smell of marijuana escaped from the car when stopped, 3) other contraband
was found in the console in proximity to where appellant had been seated, 4) appellant had
money on him in denominations that are frequently used to purchase drugs, 5) appellant
took longer than necessary to stop his car when the officer activated his lights, and 6) the
cocaine found was in quantities for sale and not for personal use.
 These facts are
sufficient to link appellant to the drugs and show that he exercised care, custody, or control
over them.
          We also recognize that appellant offered an alternative theory for the jury's
consideration.  That is, he attempted to show that Padilla was responsible for the cocaine
since it was in her coat.  Yet, the jury was not required to believe the theory, see Evans v.
State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006), and we cannot say that its resolution
of the matter undermines our confidence in the verdict.  In short, the evidence is both
legally and factually sufficient.
                         Issue Two - Fifth Amendment Right of Co-Defendant
          In his next issue, appellant contends that the trial court erred by allowing the State
to continue to question Padilla about prior statements made by her after she invoked her
right against self-incrimination.  According to appellant, the questions were designed to
give the inference that appellant possessed the drugs up until the time of the stop at which
time he tossed them to Padilla to put in her pocket.  We overrule the issue.
          We initially note that the State conceded error in this matter.  It nonetheless believes
the error to be harmless.  We agree.
          To assess the likelihood that the jury's decision was adversely affected by the
questioning, we consider the entire record, the other evidence admitted, the nature of the
evidence supporting the verdict, and the character of the error in light of the other evidence
in the case.  Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002) (evaluating
harm from erroneously admitted evidence).  We also consider the arguments of counsel
and the extent to which the State emphasized the improper evidence.  Id. at 358; Morales
v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). 
          As stated earlier, appellant admitted that “all” of the drugs belonged to him, or so
a reasonable jury could conclude.  That admission carries much weight.  So too was he
found in possession of a large amount of money, as would one dealing in drugs.   That he
owned the car from which the smell of marijuana escaped and personally possessed
marijuana is other evidence of import, and when considered in totality, the evidence of
appellant’s guilt was and is quite substantial.
          Next, the State did refer to Padilla in its closing argument.  Those comments
consisted of the prosecutor saying, “if you remember, Valerie Padilla walked into this
courtroom under subpoena, and every question that was asked of her, her response was,
‘I take my 5th Amendment.’”  After that, no other mention was made of Padilla or her
invocation of the Fifth Amendment.  We also note that in calling her, the State may have
been risking appellant’s conviction.  Simply put, it was playing with a two-edged sword.  It
is not farfetched for a lay juror to question why she would opt to remain silent if she did
nothing wrong.  So, her invocation of the Fifth Amendment could well have led the jury to
believe that she actually possessed the cocaine, not appellant.  Given that, the tactic may
have posed more risk to the State than to appellant.
          We also note that the relevant questions asked of Padilla (which resulted in her
invocation of the Fifth Amendment) were rather exculpatory in nature.  That is, they could
be viewed as tending to reduce or negate her own culpability.  For instance, they consisted
of her being asked whether 1) “he [appellant] threw [her] a package, a clear plastic
package, containing crack cocaine” and told her to hold it, 2) he told her “‘[h]ere, grab this,’”
and she put the package in the pocket of her coat, 3) she told the police that she knew
nothing about the cocaine or the marijuana, 4) she possessed money when searched
(which she did not), 5) appellant continued to drive though being directed to stop and
during which period he threw the package of cocaine to her, and 6) she held the drugs to
protect appellant with whom she was having a relationship.  
          After considering the foregoing, we cannot say that the purported error either
affected appellant’s substantial rights or left us unable to conclude, beyond reasonable
doubt, that it did not affect the jury’s decision.  In sum, we find no harm.  This, however,
is not to be viewed as indication that we approve of any litigant’s effort to engage in or
create error simply because other factors may somehow ameliorate the conduct’s affect. 
Harm is assessed on a case-by-case basis.  The pertinent indicia encompassed in the next
case may well call for a different result, especially if the accused does not admit that the
drugs were his.
           Accordingly, the judgment of the trial court is affirmed.
 
                                                                           Brian Quinn
                                                                          Chief Justice
Do not publish.
