                                 MEMORANDUM OPINION
                                         No. 04-10-00675-CR

                                    Jesus HERRERA-OBREGO,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CR-0135A
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 20, 2011

AFFIRMED

           Jesus Herrera-Obrego was convicted of possession with intent to deliver cocaine in an

amount of more than 400 grams.           In a single issue on appeal, Herrera-Obrego asserts the

evidence is legally insufficient to support his conviction either as a principal or as a party. We

hold the evidence is sufficient to support Herrera-Obrego’s guilt to the offense and affirm the

trial court’s judgment.
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                                           BACKGROUND

       On the morning of September 16, 2009, Herrera-Obrego and Guadalupe Mosqueda-

Aguirre drove into Laredo, Texas from Monterrey, Mexico. Unbeknownst to them, a description

of their vehicle (a white Volkswagen bearing Mexico license plates, with male and female

occupants) and information that the car had a compartment with drugs inside had been passed to

American law enforcement. Officer Wayne Morgan, a police officer in Natalia, Texas who

works with the High Intensity Drug Trafficking Administration (“HIDTA”), stopped a car

matching the description of the Volkswagen in a routine traffic stop because the female occupant

(Mosqueda-Aguirre) was not wearing a seat belt. Mosqueda-Aguirre told the police officer that

she and Herrera-Obrego were friends and they were on their way to a flea market in San

Antonio. Herrera-Obrego told Officer Morgan the car belonged to his wife, but he told another

officer the car belonged to a friend of Mosqueda-Aguirre. 1 He also said he and Mosqueda-

Aguirre were going to the flea market and then returning to Monterrey later that same day.

       Officer Morgan, who thought it was unusual for two people to drive ten hours just to go

shopping, asked for consent to search the car, which Herrera-Obrego granted. Officer Morgan

discovered the seat belts had been removed and replaced based on scratches he saw on the nuts

attaching the belts to the floorboard. He also noticed that the screws on the console between the

two front bucket seats had been tampered with, although the car was relatively new with only

6,000 miles on the odometer. The underside of the vehicle indicated the gear shaft had been

pulled forward and the tailpipe relocated.       All these modifications led Officer Morgan to

conclude the vehicle had a hidden compartment, but he could not find a trap door. He testified

that most people who drive the vehicles used to transport controlled substances do not always


1
  The car was registered to Marie Esther Carrizales-Alonso of Guadalupe, Nuevo Leon, Mexico. Mosqueda-
Aguirre is also from Guadalupe. Herrera-Obrego’s home address is in Monterrey, Nuevo Leon, Mexico.

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know what they are being paid to transport, but they do know there is a compartment in the car

that contains a controlled substance. In his experience, the driver is told to drive to San Antonio,

park the car for a few hours, and then drive back with money. After Officer Morgan completed

his search, he contacted HIDTA, which had surveillance officers in place to follow the car.

Officer Morgan released the car, and the entire stop lasted about fifteen to twenty-five minutes.

       After Officer Morgan released the car, John Dyar, a police officer in San Antonio, Texas

who also works with HIDTA, followed the car from Natalia into Bexar County. Although

surveillance officers momentarily lost sight of the car, they made visual contact again when they

saw the car parked in an HEB Store parking lot, closer to the access road than to the store.

Officer Dyar watched as a man and woman got out of the Volkswagen and walked into the HEB.

Officer Dyar then saw a black Nissan drive into the lot. A Hispanic man got out of the Nissan

and walked around the lot, looking in the direction of the Volkswagen. He then walked to the

HEB where he met with Herrera-Obrego and Mosqueda-Aguirre. According to Officer Dyar, the

meeting was brief and nothing was exchanged. Officer Dyar believed the man who drove the

Nissan may have seen the HIDTA surveillance officers and decided not to drive away in the

Volkswagen. Officer Dyar explained it is common practice for drivers to leave vehicles in a

busy parking lot and wait for someone to get the car and drive it to another location to unload the

contraband. He testified the drivers are usually aware the vehicle is loaded with narcotics. Soon

after the man left in the Nissan, Herrera-Obrego and Mosqueda-Aguirre left the HEB parking lot.

The HIDTA surveillance officers followed.

       Gerald Fuller, a San Antonio police officer, received a message from HIDTA asking him

to assist in a stop of the Volkswagen as it left San Antonio. When he saw the car slow its speed

to below the posted freeway speed limit, he pulled it over for impeding traffic. Herrera-Obrego



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explained he was having trouble with the vehicle’s cruise control, which caused him to slow the

car. Herrera-Obrego again consented to a search of the car. He also consented to a canine scent-

search.

          Garland Gaston, a canine officer with the Leon Valley Police Department assigned to

HIDTA as a dog handler, and his dog conducted the scent-search. The dog alerted to the scent of

drugs and led the officers to the back of the center console inside the car. Officer Gaston

smelled fabric softener, which he explained was often used to mask the odor of drugs. He said

that, in his experience, the driver will park the car, leave the keys in the car, and walk to a

business for an hour or two. The car will then be driven away by another person. After the

drugs are removed from the car, it may be returned to the parking lot where it is driven away by

the original driver. Officer Gaston also noticed tool marks on the bolts, which indicated the car

had been modified. Herrera-Obrego told the officers the car had not been “worked on.” After

the car seat was removed, Officer Gaston noticed the screws holding the console in place were

loose. The officers found a compartment under the console, inside of which ten “bricks” of

cocaine were found. 2 At least two of the “bricks” were stamped with the image of a tarantula.

Detergent or fabric softener was layered inside the plastic that wrapped each “brick.” The gross

weight of the cocaine was approximately eleven kilograms, with a combined value in San

Antonio of approximately $250,000. The officers who saw the hidden compartment all stated it

could not have been seen by a casual observer of the car.

          Robert Pineda, a special agent with Immigration and Customs Enforcement who is

assigned to the HIDTA unit, was at the scene when the cocaine was found. Agent Pineda

ascertained that Herrera-Obrego is a Mexican national who was in the United States on a legal


2
  The police also recovered $800.00 in cash from Herrera-Obrego; $1,749.00 from Mosqueda-Aguirre; and a purse
containing two watches, three cellular telephones, a wallet, two Mexican passports, and four Mexican ID cards.

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tourist permit. Agent Pineda testified Herrera-Obrego told him that Mosqueda-Aguirre hired

him to drive her to San Antonio and that the cocaine belonged to her. Herrera-Obrego also told

the agent, “I know there’s something but she’s behind everything.” Herrera-Obrego did not act

surprised when the cocaine was discovered inside the car.        The law enforcement officers

described Herrera-Obrego as calm, quiet, and cooperative during the two searches of the car.

Agent Pineda testified that Herrera-Obrego and Mosqueda-Aguirre together legally crossed the

United States/Mexico border twelve times beginning in 2007. Their most recent crossing prior

to September 16, 2009 was in a different vehicle on August 1, 2009. Agent Pineda thought it

suspicious that they would drive into Texas twice in the same month but in two different

vehicles. On September 16, they crossed the border into Laredo at 5:28 a.m., leaving Monterrey

at approximately 2:00 a.m. In addition to her twelve trips with Herrera-Obrego, Mosqueda-

Aguirre entered the United States sixteen times during the same time period.

       The only witness called by the defense at trial, Rebecca Reed, testified she viewed the

Volkswagen after it was impounded, and she did not believe a casual observer would have

realized there was something beneath the console prior to its removal.

                                    STANDARD OF REVIEW

       In a sufficiency challenge to the evidence, we review all the evidence in the light most

favorable to the jury’s verdict to determine whether any rational jury could have found the

essential elements of the charged offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 899, 912 (Tex. Crim. App. 2010). We defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to

be given their testimony. Id. at 899. “Circumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to



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establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The standard of

review is the same for cases relying on either direct or circumstantial evidence. Id. “Each fact

need not point directly and independently to the guilt of the appellant, as long as the cumulative

force of the incriminating circumstances is sufficient to support the conviction.” Id. Because

Herrera-Obrego was charged as both a principal and a party to the offense, we will review the

evidence to determine whether it is legally sufficient under either theory. Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004) (“[W]hen the trial court’s charge authorizes the jury to

convict on more than one theory, as it did in this case, the verdict of guilty will be upheld if the

evidence is sufficient on any one of the theories.”).

                                                   DISCUSSION

         Herrera-Obrego argues no rational trier of fact could have found he knew there was

contraband in the Volkswagen. 3 We disagree. In this case, a reasonable jury could infer

Herrera-Obrego exercised care, custody, and control over the cocaine found in the vehicle he

drove. Witnesses testified there was a strong odor in the car resulting from the fabric softeners

used to mask the odor of the drugs. Although the police admitted the alterations to the vehicle

were not readily apparent, the odor certainly was. Herrera-Obrego lied to the police about the

purpose of the trip and his intended destination. The couple never went to the flea market and

did not appear to make any purchases at any location. A defendant’s false statements are some

evidence of guilt. See Ates v. State, 21 S.W.3d 384, 390 (Tex. App.—Tyler 2000, no pet.)

(appellate court considered false statements made by defendant in considering sufficiency of

evidence); Loserth v. State, 985 S.W.2d 536, 541-42 (Tex. App.—San Antonio 1998, pet. ref’d)


3
  To convict Herrera-Obrego as a principal, the State was required to prove: (1) he exercised actual care, control and
management over a controlled substance in the amount alleged; (2) he intended to deliver the controlled substance to
another; and (3) he knew the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 703
(Tex. Crim. App. 1995); Erskine v. State, 191 S.W.3d 374, 379 (Tex. App.—Waco 2006, no pet.)

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(same).      Finally, Herrera-Obrego admitted “I know there’s something but she’s behind

everything” in an attempt to deflect his involvement. Given the circumstances of this statement,

a reasonable jury could infer that Herrera-Obrego knew the “something” was cocaine.

                                           CONCLUSION

          Viewing the evidence in the light most favorable to the jury’s verdict, and deferring to the

jury’s apparent credibility determinations, the evidence is sufficient to permit a rational jury to

find the essential elements of the offense beyond a reasonable doubt and to convict Herrera-

Obrego as a principal. The judgment of the trial court is affirmed.



                                                    Steven C. Hilbig, Justice

Do not publish




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