                                    NO. 07-05-0087-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                DECEMBER 29, 2006
                          ______________________________

                       ANIBAL HERIBERTO VALLE, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                NO. 3972; HONORABLE STEVEN R. EMMERT, JUDGE
                       _______________________________


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


                                  DISSENTING OPINION


       Because I disagree that the evidence is factually insufficient to support the

conviction, and would affirm the trial court’s judgment, I must respectfully dissent from the

Court’s decision to reverse.


       I agree with the Court that the officers’ descriptions of appellant’s demeanor during

the search of his tractor-trailer rig shed little light on the issue of his knowing possession

of the hidden marijuana. But, coupled with the undisputed evidence of appellant’s sole
control of the rig1 both before and after the cargo was loaded, I think the inference of

appellant’s guilty knowledge of the illicit part of his cargo is sufficiently supported by the

evidence of appellant’s cross-country transportation of an empty trailer, followed by his

cross-country transportation of the trailer a quarter-full of cargo; appellant’s acknowledged

presence when the cargo was loaded in Los Angeles; the manner in which the cargo was

loaded, with the charcoal bags stacked on the pallet reaching almost to the top of the

trailer, hiding the shorter pallets of corn flour; the nature of the cargo documentation

appellant carried; the $3820 total value of the legal cargo compared with the much greater

value of the marijuana; that, although the cargo documentation was somewhat consistent

with appellant’s testimony about the circumstances under which he took possession of the

cargo, the documentation easily can be read to indicate he paid cash, at least for the corn

flour; and appellant’s purchase and use of a lock for the trailer after his cargo was loaded.2

I would find that, viewing all the evidence in a neutral light, the evidence supporting an


       1
       See Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.–El Paso 1995, pet. ref’d)
(knowledge of presence of contraband inferred from control of vehicle in some
circumstances).
       2
        United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993) (finding circumstantial
evidence supported conclusion of truck driver’s knowing possession when drugs hidden
and not readily accessible to driver). The facts in Garza are similar to those in our present
case. After the tractor trailer rig Garza was driving was stopped at a checkpoint, Border
Patrol agents found cocaine concealed in his load of limes. 990 F.2d at 173. In addition
to his control and ownership of the truck, the appellate court found Garza’s guilty
knowledge of the presence of the cocaine was supported by his nervousness and
trembling; a false bill of lading hidden in the truck; his admitted falsification of his log book,
accompanied by an implausible explanation; the “enormous” quantity of cocaine found; and
suspicious circumstances involving Garza’s delayed departure and his abandonment of his
unlocked truck for a time. Id. at 176. The federal court’s analysis can be seen as an
application of the same type of “links” analysis Texas courts perform to evaluate evidence
of a defendant’s knowing possession of drugs found on premises not solely in the
defendant’s possession. See Bethancourt-Rosales v. State, 50 S.W.3d 650, 653-55
(Tex.App.–Waco 2001, pet. ref’d) (citing Garza in links analysis).

                                                2
inference of appellant’s guilty knowledge of the presence of the marijuana is not so

obviously weak as to undermine confidence in the jury’s verdict. See Johnson v. State, 23

S.W.3d 1, 11 (Tex.Crim.App. 2000) (setting out factual sufficiency standard of review).


      As I understand the record, except for the invoices and the copy of appellant’s truck

lease, the only evidence supporting his versions of the purpose of his trip to Los Angeles

and of the circumstances surrounding the loading of cargo comes from appellant’s

testimony. I conclude also that the jury’s apparent rejection of parts of appellant’s story

and its finding of his knowing possession of the marijuana are not greatly outweighed by

contrary proof. Johnson v. State, 23 S.W.3d at 11.


                                          James T. Campbell
                                              Justice


Publish.




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