
 

 



NUMBER 13-08-585-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

GILBERTO ALCARIO AMARO, III,			                   Appellant,

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the 156th District Court 
of Bee County, Texas.
 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela


	A jury convicted appellant, Gilberto Alcario Amaro, III, of the offense of possession
with intent to deliver cocaine in the amount of more than one gram but less than four
grams, a second-degree felony.  See Tex. Health & Safety Code Ann. §§ 481.102(3)(D)
(Vernon Supp. 2008), .112(a), (c) (Vernon 2003).  The trial court, having found true the
enhancement allegation that Amaro previously had been convicted of one felony offense,
assessed punishment at fifty years' incarceration in the Institutional Division of the Texas
Department of Criminal Justice.  Amaro brings five issues for our consideration.  We affirm.

 Factual Background

	On February 12, 2008 at approximately 11:00 a.m., Beeville police officer Michael
Willow was dispatched to a 9-1-1 call from the Esquire Motel in Bee County, Texas; the call
was for "shots fired."  Upon arriving at the motel, he saw Regan Scott, an assistant police
chief, tending to Jesse Martinez, who had been wounded by a shotgun blast and was lying
in the parking lot.  Officer Willow saw Amaro, who had a gunshot wound to the abdomen,
lying across the threshold of the door to room 118.  A shotgun and a nine-millimeter Ruger
were within Amaro's reach, and spent casings from both weapons were found in the
doorway of room 118.
	When Officer Willow arrived at room 118, Lieutenant Jefferson of the Beeville police
department  was standing outside the room tending to Amaro and told Officer Willow that
room 118 had not been secured.  Officer Willow entered the room in order to perform a
"clearance" of the room, i.e., to check for other suspects possibly armed in the room who
could have been involved in the shooting, thereby protecting the safety of others at the
scene.  After Amaro was taken to the hospital, Officer Willow obtained a search warrant
for room 118.  He and others searched the room and recovered the following: (1) clear
cellophane baggies with white residue inside; (2) four digital scales; (3) seven cellular
phones; (4) a cell phone case containing $330.00; (5) a wallet with $35.00; (6) a smoking
pipe with a small baggie of marihuana; (7) batteries; (8) baking soda; (9) a switchblade
knife with a white powdery substance on the tip; and (10) 1.66 grams of cocaine.  A portion
of the cocaine was discovered hidden in a heating vent.  The only working cell phone, the
wallet, the cell phone case with the money, and one of the recovered baggies of cocaine
were found in the night stand by the bed.  The cell phone had Amaro's mother's phone
number listed as "Mom."  The search of the motel room also turned up an IRS W-2 form
with Amaro's wages and earnings and men's coats hanging behind the door.
	Yvette Cruz, the motel's manager, testified that Amaro checked into the motel with
his girlfriend, Zenaida Esparza, in November 2007.  The motel room was rented in Amaro's
name, and he initially paid on a daily basis but later began paying on a weekly basis. 
Amaro and Esparza stayed in three different rooms from November to February, and they
were in room 118 on February 12, 2008.  Cruz testified that Amaro made a payment for
the motel room on February 8, 2008.
	Esparza testified that Amaro left the motel room on February 9, 2008.  She stated
that she allowed Richard Guerra, her drug dealer,  to use her residence to "break up" and
"bag" cocaine and that she allowed him to leave his scales and baggies at her residence
while he went to make a drug delivery.  Esparza contacted Amaro on February 12 and
asked him to take her to do some laundry.  She testified that before he came to pick her
up, she hid all the scales, baggies, and cocaine in the top dresser drawer to prevent Amaro
from seeing them.  She had no knowledge of the cocaine hidden in the heating vent but
stated that the shotgun found in the motel room belonged to Amaro and that he needed
it for protection.  Esparza testified that soon after Amaro arrived to pick her up, Martinez
knocked on the door and asked for Amaro.  Amaro pushed her away, and she ran to her
brother's motel room at the Esquire Motel and called 9-1-1.  While in her brother's motel
room, she heard gunshots.
	Amaro's sister, Gina Guzman, testified that Amaro stayed at his parent's house on
February 9, 2008. She stated that Amaro showed up at her house on the evening of 
February 10, looked to see what was wrong with her refrigerator and spent the night at her
house.  On February 11, Guzman left for work around 7:40 a.m.  Amaro did some work at
Guzman's house and spent the night of February 11th there.  Guzman's testimony
established Amaro's presence at her house on February 10 and for some of the following
day, but Guzman left for work at 7:40 a.m. and returned from work at approximately 6:30
p.m.  There was evidence that some work had been performed by Amaro at the Guzman
residence while Guzman was at work, but there is no evidence in the record conclusively
establishing his whereabouts for the entire day.  

  Discussion

A. Motion to Suppress
	In his first issue, Amaro argues the trial court abused its discretion by denying his
motion to suppress the evidence seized from the motel room.  See U.S. Const. amend.
IV; (1) Tex. Const. art. I § 9.
 1. Standard of Review
	When, as in this case, a trial court "enters findings of fact after denying a motion to
suppress, an appellate court must first determine whether the evidence viewed in the light
most favorable to the trial court's ruling, supports these fact findings."  Keehn v. State, 279
S.W.3d 330, 334 (Tex. Crim. App. 2009) (internal quotation omitted).  "If the findings are
supported by the record, appellate courts will 'afford almost total deference to a trial court's
determination of the historical facts' 'when they are based on an evaluation of credibility
and demeanor.'"  Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)).  "Appellate courts give 'the same amount of deference' to 'mixed questions of law
and fact if the resolution of those ultimate questions turns on an evaluation of credibility
and demeanor.'"  Id. (quoting Guzman, 955 S.W.2nd at 89).  "But when the resolution of
mixed law and fact questions do not depend upon an evaluation of credibility and
demeanor, appellate courts are permitted to conduct a de novo review."  Id.
	Because the trial court was the sole and exclusive trier of fact at the suppression
hearing, we will not set aside the denial of Amaro's motion to suppress evidence absent
a showing of an abuse of discretion.  Guzman, 955 S.W. 2d at 89; Maddox v. State, 682
S.W. 2d 563, 564 (Tex. Crim. App. 1985); Jackson v. State, 968 S.W.2d 495, 498 (Tex.
App.-Texarkana 1998, pet. ref'd) (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996)).  If the determination was "reasonably supported by the record, and was
correct under any theory of law applicable to the case," we are not at liberty to disturb the
trial court's findings.  State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002);
Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994); Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990); State v. Hopper, 842 S.W.2d 817, 819 (Tex. App.-El
Paso 1992, no pet.).  Therefore, instead of engaging in a factual review of the record, we
will "view the evidence in a light most favorable to the trial court's ruling" to decide only
whether the trial court improperly applied the law to the facts.  State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006); Romero, 800 S.W.2d at 543.  
 2. Protective Sweep
	A "protective sweep" is a "quick and limited search of premises, incident to an arrest
and conducted to protect the safety of police officers or others."  Reasor v. State, 12
S.W.3d 813, 815 (Tex. Crim. App. 2000) (quoting Maryland v. Buie, 494 U.S. 325, 328
(1990)).  "The Fourth Amendment permits a properly limited protective sweep in
conjunction with an in-home arrest when the searching officer possesses a reasonable
belief based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene."  Id. at 816 (citing Buie, 494 U.S.
at 337).  Further, a motel room occupant has the same constitutional protections against
unreasonable searches and seizures with respect to the motel room as an occupant of a
home.  Stoner v. California, 376 U.S. 483, 490 (1964); see Moberg v. State, 810 S.W.2d
190, 194 (Tex. Crim. App. 1991).  
	The sweep "may only extend 'to a cursory inspection of those spaces where a
person may be found' and may only last long enough to 'dispel the reasonable suspicion
of danger.'"  Reasor, 12 S.W.3d at 816 (quoting Buie, 494 U.S. at 336).  "Furthermore, the
protective sweep is not an automatic right the police possess when making an in-home
arrest."  Id.  "It is permitted only when justified by a reasonable, 'articulable suspicion that
the house is harboring a person posing a danger to those on the arrest scene.'"  Id. 
(quoting Buie, 494 U.S. at 337).  In other words, "[w]hen conducting an in-home arrest, a
police officer may sweep the house only if he possesses an objectively reasonable belief,
based on specific and articulable facts, that a person in that area poses a danger to that
police officer or to other people in that area."  Id. at 817.
 3. Analysis
	Officer Willow testified that when he arrived at the motel, he saw that Amaro and
Martinez had been wounded by gun fire.  Martinez was lying in the parking lot, and Amaro
was lying in the threshold of the open door to room 118.  Officer Willow testified that when
he arrived at room 118, Lieutenant Jefferson, who was standing outside the room tending
to Amaro, told him that the room had not been secured.  Officer Willow testified that when
he entered the room, he "was looking for other suspects possibly armed in the room that
could have been involved in the shooting. . . ."  When the prosecutor asked him why he
needed to determine whether other suspects might be in the room, he said, "Well, for the
safety of the emergency medical personnel, for the safety of the officers that were there
and also for the witnesses that were in the parking lot still."  When Officer Willow entered
the room to perform the sweep, he saw a digital scale on a table, and he saw what
appeared to be drug residue on a plate, on a night stand.  He testified that the sweep took
"about three seconds."  After clearing the room, he stood outside the open door to the
room in order to hold an I.V. bag that a medical technician was putting into Amaro, who
was still lying by the doorway to the room.  While holding the I.V. bag, Officer Willow saw
some nine-millimeter shell casings inside the room and a "little box of plastic baggies next
to the digital scales."  He testified the corners of the plastic baggies are used to package
narcotics for distribution.
	Because Officer Willow had an objectively reasonable belief, based on specific and
articulable facts, that a person in that area posed a danger to him or other persons in the
area, we hold he was justified in conducting a protective sweep of the motel room.  See
Ramirez v. State, 105 S.W.3d 730, 743 (Tex. App.-Austin 2003, no pet.) (holding officer
was permitted to sweep the room in order to establish that no individuals were present). 
We find the trial court did not abuse its discretion by denying appellant's motion to
suppress.  Issue one is overruled.
B. Whether Legally Sufficient Evidence Links Amaro to the Contraband
	In his second issue, Amaro argues the evidence is legally insufficient to establish
an "affirmative link" (2) between him and the contraband.

	1. Standard of Review-Legal Sufficiency
	In reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanchez v. State, 275
S.W.3d 901, 902 n.2 (Tex. Crim. App. 2009).  This standard gives full play to the
responsibility of the trier of fact 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.  The trier of fact is the sole judge of the weight and credibility of the evidence.  Tex.
Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see Margraves v. State, 34 S.W.3d 912,
919 (Tex. Crim. App. 2000).  Thus, when performing a legal-sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment for that
of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must
resolve any inconsistencies in the evidence in favor of the judgment.  Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000). 
	2. Applicable Law
	In Evans v. State, the court of criminal appeals stated:
		[I]n a possession of a controlled substance prosecution, "the State
must prove that:  (1) the accused exercised control, management, or care
over the substance; and (2) the accused knew the matter possessed was
contraband."  Regardless of whether the evidence is direct or circumstantial,
it must establish that the defendant's connection with the drug was more
than fortuitous.  This is the so-called "affirmative links" rule which protects
the innocent bystander-a relative, friend, or even stranger to the actual
possessor-from conviction merely because of his fortuitous proximity to
someone else's drugs.  Mere presence at the location where drugs are found
is thus insufficient, by itself, to establish actual care, custody, or control of
those drugs.  However, presence or proximity, when combined with other
evidence, either direct or circumstantial (e.g., "links"), may well be sufficient
to establish that element beyond a reasonable doubt.  It is, as the court of
appeals correctly noted, not the number of links that is dispositive, but rather
the logical force of all of the evidence, direct and circumstantial.

202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006).
	3. Analysis
	A rational jury could have determined the following from the evidence: (1) room 118
was rented in Amaro's name: (2) Amaro paid for the rent on room 118; (3) as of February
12, 2008, Amaro was still renting room 118; (4) Amaro made a payment for room 118 on
February 8, 2008; (5) Amaro was at room 118 when Officer Willow entered the room to
perform a protective sweep of that room; (6) at the time he performed the sweep, no one
else was in the room; (7) a search of room 118 shortly after the shooting revealed clear
cellophane baggies with white residue inside, four digital scales, seven cellular phones, a
cell phone case with $330.00 in it, a wallet with $35.00, a smoking pipe with a small baggie
of marihuana, batteries, baking soda, a switchblade knife with a white powdery substance
on the tip, and 1.66 grams of cocaine, a portion of which was discovered hidden in a
heating vent; (8) Amaro was shot at the motel room apparently by Martinez who came
there looking for him; (9) Amaro had a shotgun in the motel room which he needed for
protection; (10) some of the contraband was in plain view in the room; (11) a working cell
phone with Amaro's mother's phone number titled "Mom" was found in the motel room in
a night stand drawer with contraband; (12) Esparza denied knowledge of the cocaine found
hidden in the room's heater vent; (13) an IRS form W-2 with Amaro's name, wages, and
earnings was found in the motel room; and (14) men's coats were found behind the motel
room door.
	The contrary evidence showed: (1) Amaro got into a fight with Esparza and spent
the night of February 9, 2008 at his parent's house; (2) Esparza testified that the drugs
belonged to her and the contraband belonged to someone else; (3) Amaro spent the nights
of February 10th and 11th at his sister's residence; (4) there is evidence of work completed
at Guzman's residence while she was at work; and (5) Esparza testified that Amaro was
not present at the motel room from when he left on February 8th until the morning of
February 12th.
	Viewing the evidence in the light most favorable to the verdict, we hold the evidence
is legally sufficient to show that Amaro possessed a controlled substance, namely cocaine. 
More specifically, there is legally sufficient evidence to establish he knowingly exercised
control, management, and care over the cocaine beyond a reasonable doubt.  See Evans,
202 S.W.3d at 164-65.  We therefore conclude, a rational trier of fact could find the
essential elements of possession of a controlled substance and affirmatively link them to
Amaro.   We overrule issue two.
C. Whether Factually Sufficient Evidence Links Amaro to the Contraband
 
	In his third issue, Amaro contends the evidence is factually insufficient to establish
an "affirmative link" between him and the contraband.
 1. Standard of Review
	In a factual-sufficiency review, the only question to be answered is:  "Considering
all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a
reasonable doubt?"  Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). 
Evidence can be deemed factually insufficient in two ways:  (1) "the evidence supporting
the conviction is 'too weak' to support the factfinder's verdict"; or (2) "considering conflicting
evidence, the factfinder's verdict is 'against the great weight and preponderance of the
evidence.'"  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson
v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)).  "When a court of appeals
conducts a factual-sufficiency review, [the court] must defer to the jury's findings."  Id.
(citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)).  The court of criminal
appeals has "set out three 'basic ground rules' implementing this standard."  Id. (quoting
Watson, 204 S.W.2d at 414).  First, the appellate court "must consider all of the evidence
in a neutral light, as opposed to in a light most favorable to the verdict."  Id. (citing Watson,
204 S.W.3d at 414).  Second, the appellate court "may only find the evidence factually
insufficient when necessary to 'prevent manifest injustice.'"  Id. (quoting Cain, 958 S.W.2d
at 407).  Although the verdict is afforded less deference during a factual sufficiency review,
an appellate court is not free to "override the verdict simply because it disagrees with it." 
Id. (citing Cain, 958 S.W.2d at 407).  Third, the appellate court "must explain why the
evidence is too weak to support the verdict" or why the conflicting evidence greatly weighs
against the verdict.  Id. (citing Watson, 204 S.W.3d at 414).
 2. Analysis
	Viewing the evidence in a neutral light, we find that the evidence is factually
sufficient to show that Amaro possessed a controlled substance, namely cocaine.  More
specifically, there is factually sufficient evidence to establish he knowingly exercised
control, management, and care over the cocaine.  See Evans, 202 S.W.3d at 164-65.  We
hold that the evidence showing that Amaro possessed the cocaine is not so weak that the
jury's determination is clearly wrong and manifestly unjust, or that the verdict is against the
great weight and preponderance of the evidence.  See Watson, 204 S.W.3d at 414-17. 
Considering all the evidence in a neutral light, we conclude the trier of fact was reasonable
in finding guilt beyond a reasonable doubt.  Issue three is overruled.


D. Whether Legal Sufficiency of the Evidence Establishes Intent to Deliver the Cocaine

	In his fourth issue, Amaro argues the evidence is legally insufficient to establish that
he possessed the cocaine with the intent to deliver it.
 1. Applicable Law
	To obtain a conviction for the offense of possession of a controlled substance with
intent to deliver, the State must prove, in addition to possession, that the accused intended
to "transfer, actually or constructively, to another a controlled substance. . . ."  Tex. Health
& Safety Code Ann. §§ 481.002(8) (Vernon Supp. 2008), 481.112(a);  Utomi v. State, 243
S.W.3d 75, 82 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).  The State may prove intent
to deliver a controlled substance by "circumstantial evidence, including evidence
concerning an accused's possession of the contraband."  Utomi, 243 S.W.3d at 82; Mack
v. State, 859 S.W.2d 526, 528 (Tex. App.-Houston [1st Dist.] 1993, no pet.).  "An oral
expression of intent is not required."  Utomi, 243 S.W.3d at 82.  
	"Additional factors that courts have considered [when] determining whether an
accused had the intent to deliver the contraband include:  (1) the nature of the
location at which the accused was arrested; (2) the quantity of the contraband in the
accused's possession; (3) the manner of packaging; (4) the presence, or lack
thereof, of drug paraphernalia for either use or sale; (5) the accused's possession
of large amounts of cash; and (6) the accused's status as a drug user."  
Id.; see Williams v. State, 902 S.W.2d 505, 507 (Tex. App.-Houston [1st Dist.] 1994, pet.
ref'd).
	2. Analysis
	Amaro was found in a motel room with cocaine.  Testimony showed that the
motel was very inexpensive and that motels allow for an easy relocation if the drug
dealer suspects the location might have been discovered.  The amount of cocaine that
Amaro had in the motel room was not substantial; however, baking soda was found in
the motel room.  When baking soda is added to cocaine, the aggregate weight of the
cocaine is increased, thus increasing the amount for sale.  Drug paraphernalia, i.e.,
digital scales, a knife with a white powdery substance on the tip, cellophane baggies
with white residue in them, and cellophane baggies with the corners missing (the
corners are used for drug distribution) were found in the motel room.  These items are
commonly used in drug distribution.  Three-hundred-thirty dollars was found at the
motel room.  This is not a large sum of money; however, Esparza testified that Amaro
gave her $500.00 to pay for rent even though the motel register showed he paid the
weekly bill the day before.  Moreover, Amaro had a prior conviction for possession of
a controlled substance.  Viewing all the foregoing evidence in the light most favorable
to the verdict, we hold that a jury could have found beyond a reasonable doubt that
Amaro possessed the cocaine with the intent to deliver it.  Issue four is overruled.
E. Factual Sufficiency of the Evidence-Intent to Deliver the Cocaine

	In his fifth issue, Amaro urges the evidence is factually insufficient to establish
that he possessed the cocaine with the intent to deliver it.  After neutrally examining all
the evidence, we find that the proof of guilt was not so weak that the verdict is clearly
wrong or manifestly unjust; nor is the verdict against the great weight and
preponderance of the evidence.  Issue five is overruled.






III. Conclusion	We affirm the judgment of the trial court.

 
 
							ROSE VELA	
							Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and
filed this 2nd day of July, 2009.
1.  The Fourth Amendment protects the "right of the people to be secure . . . against unreasonable
searches . . . and no Warrants shall issue, but upon probable cause. . . ."  U.S. Const. amend. IV.
2.  Nearly three years ago, the court of criminal appeals decided to change its terminology and refer
to the concept of "affirmative links" as merely "links."  Evans v. State, 202 S.W.3d 158, 162 n.9 (Tex. Crim.
App. 2006).
