Affirmed and Majority and Dissenting Opinions filed September 24, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00504-CR

                     MANUEL ESPINO-CRUZ, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1531630

                      MAJORITY OPINION

      A jury convicted appellant Manuel Espino-Cruz of possession with intent to
deliver a controlled substance weighing more than 400 grams, and the trial court
sentenced him to twenty years’ confinement in the Texas Department of Criminal
Justice, Institutional Division. In two issues, appellant challenges the evidentiary
sufficiency to support his conviction. Appellant first contends the evidence is
legally insufficient to support a finding that he possessed the controlled substance,
heroin, because no evidence affirmatively links him to the heroin. Appellant also
argues that the evidence is legally insufficient to support the finding that appellant
intended to deliver the heroin. Concluding the evidence is sufficient in both
respects, we affirm the judgment.

                                        Background

       A confidential source provided information about a drug trafficking
organization to Houston Police Department (“HPD”) Narcotics Officer Ariel
Ferrer.1 Ferrer arranged to purchase about 100 grams of heroin from the source’s
drug seller in a “small-scale” buy, which would serve as a precursor to a
contemplated larger transaction. Ferrer conducted the small buy in his car with a
man and a woman. Ferrer could not see the male’s face clearly because he wore a
surgical face mask and sat in the car’s backseat. No one was arrested during this
transaction because Ferrer planned to arrange a larger purchase. Ferrer asked the
male about purchasing a larger quantity of heroin, and the individual told Ferrer to
talk to his boss.

       Working through the confidential source, Ferrer arranged to purchase seven
pounds of black tar heroin. The confidential source scheduled the transaction. On
the day of the sale, the source maintained contact with Ferrer to provide ongoing
details. The source contacted the sellers and provided Ferrer with information
about the sellers’ vehicle, a Ford Fusion. Ferrer was conducting surveillance
nearby and saw the Ford Fusion. He also saw the Fusion’s two occupants, one of
whom was appellant.          Ferrer saw the occupants talking with the confidential
source. After the confidential source made contact with the sellers, the source left



       1
          Ferrer is an experienced narcotics investigator and a member of the High Intensity Drug
Trafficking Area (HIDTA) program, a multi-agency task force consisting of local, federal, and
state entities working to dismantle drug trafficking organizations at the highest level.

                                               2
the scene in his car, and the sellers followed directly behind him in the Ford
Fusion. Ferrer observed this activity from his location.

      Ferrer provided a description of the sellers’ vehicle to patrol units, which
followed the Fusion for several blocks. When the driver of the Fusion failed to
signal a lane change, HPD Officer Clifford Marshall stopped the Fusion.
Marshall’s partner approached the driver, while Marshall approached appellant,
who occupied the front passenger seat. Appellant and the driver were detained,
and Marshall’s partner obtained the driver’s consent to search the vehicle. When
Marshall opened the trunk, he immediately smelled a strong odor of heroin. He
found a large quantity of what he believed to be heroin in a brown bag inside the
trunk of the car. Forensic analysis revealed the substance in the bag to be 3,482.63
grams of heroin.2

      A grand jury charged appellant with possession with intent to deliver over
400 grams of a controlled substance, namely heroin. At appellant’s trial, Ferrer,
Marshall, and a chemist testified. The trial court instructed the jury that it could
convict appellant of the charged offense either as a principal actor or under the law
of parties. After hearing the evidence and argument of counsel, the jury convicted
appellant. The trial court sentenced him to twenty years’ confinement in the Texas
Department of Criminal Justice, Institutional Division.

      This appeal followed.

                                            Issues

      Appellant presents two issues for our review: (1) a challenge to the legal
sufficiency of the evidence to support his conviction, and (2) a challenge to the
trial court’s denial of his motion for directed verdict. Both issues turn on the legal

      2
          3,482.63 grams is approximately 7.67 pounds.

                                               3
sufficiency of the evidence to support a conviction. See Gabriel v. State, 290
S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Lewis v. State,
193 S.W.3d 137, 139-40 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We
address appellant’s two issues together.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all the evidence in
the light most favorable to the verdict and determine whether a rational jury could
have found the elements of the offense beyond a reasonable doubt. See Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)); Jackson v. State, 530 S.W.3d 738, 741 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). We consider all evidence in the trial record,
whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013). We also consider both direct and circumstantial evidence,
as well as any reasonable inferences that may be drawn from the evidence. See
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      Although we consider everything presented at trial, we do not re-evaluate
the weight and credibility of the evidence or substitute our judgment for that of the
fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. Jackson, 530 S.W.3d at 741-42 (citing Wesbrook
v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)).

B.    Governing Law

      The State was required to prove appellant knowingly possessed with intent
to deliver a controlled substance listed in penalty group I, which includes heroin.


                                           4
See Tex. Health & Safety Code § 481.112(a), (e); see also id. § 481.102(2)
(identifying heroin as a member of penalty group I). To support a defendant’s
conviction as a principal actor, the State had to prove the defendant “knowingly
possessed” the contraband, which requires proof that the defendant (1) exercised
“actual care, custody, control, or management” over the substance and (2) knew
the substance was contraband. See id. § 481.002(38) (definition of possession);
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011); Evans v. State,
202 S.W.3d 158, 161 (Tex. Crim. App. 2006).          “Deliver” means to transfer,
actually or constructively, to another a controlled substance, including an offer to
sell a controlled substance. Tex. Health & Safety Code § 481.002(8). The State
need not show exclusive possession of the contraband to support conviction as a
principal actor. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). Control over the contraband may be exercised by more
than one person. Id.

      To prove possession of a controlled substance as a party, the State must
show (1) that another possessed the contraband and (2) the defendant, with the
intent that the offense be committed, solicited, encouraged, directed, aided, or
attempted to aid the other’s possession. Id. at 324-25; see also Tex. Penal Code
§ 7.02(a)(2); Vela v. State, No. 14-16-00786-CR, 2018 WL 1004699, at *3-4 (Tex.
App.—Houston [14th Dist.] Feb. 22, 2018, pet. ref’d) (mem. op., not designated
for publication). To determine whether the defendant participated as a party,
courts may look to events occurring before, during, and after the commission of the
offense, and may rely on the defendant’s actions that show an understanding or
common design to commit the offense. Vela, 2018 WL 1004699, at *4 (citing
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). Mere presence or
knowledge of an offense does not make one a party to possession; instead, the


                                         5
evidence must show that at the time of the offense, the parties were acting together,
each contributing some part towards the execution of their common purpose. Id.

      Appellant argues that the evidence shows nothing more than his presence as
a passenger in a car whose driver was involved in a drug transaction, and that no
evidence exists proving that he intended to deliver the contraband. Therefore, his
conviction as a principal actor is improper. Further, he argues his conviction is
improper under the law of parties because there is no evidence that appellant
solicited, encouraged, directed, aided, or attempted to aid the driver in possessing
the heroin. The State responds that legally sufficient evidence exists to support
appellant’s conviction either as a principal actor or as a party.

C.    Possession

      We first examine whether the evidence is legally sufficient to support
appellant’s conviction as a principal actor. The State had to prove that appellant
knowingly possessed the heroin, i.e., that he exercised actual care, custody,
control, or management over the heroin and knew it was contraband.

      Because appellant was not in exclusive possession of the place where the
controlled substance was found, we cannot conclude that appellant had knowledge
of and control over the contraband unless the State establishes an “affirmative
link” between the accused and the contraband.          See Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005), overruled in part on other grounds by
Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Robinson,
174 S.W.3d at 325. A link “generates a reasonable inference that the accused
knew of the contraband’s existence and exercised control over it.” Olivarez v.
State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The
elements of possession may be proven through direct or circumstantial evidence,
although the evidence must establish that the accused’s connection with the
                                           6
substance was more than fortuitous. Evans, 202 S.W.3d at 161-62; Poindexter,
153 S.W.3d at 405-06.

      The Court of Criminal Appeals has recognized the following non-exclusive
factors as tending to establish affirmative links: (1) the defendant’s presence when
a search is conducted; (2) whether the contraband was in plain view; (3) the
defendant’s proximity to and the accessibility of the contraband; (4) whether the
defendant was under the influence of narcotics when arrested; (5) whether the
defendant possessed other contraband when arrested; (6) whether the defendant
made incriminating statements when arrested; (7) whether the defendant attempted
to flee; (8) whether the defendant made furtive gestures; (9) whether there was an
odor of contraband; (10) whether other contraband or drug paraphernalia were
present; (11) whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs were found
was enclosed; (13) whether the defendant was found with a large amount of cash;
and (14) whether the conduct of the defendant indicated a consciousness of guilt.
See Evans, 202 S.W.3d at 162 n.12; Black v. State, 411 S.W.3d 25, 29 (Tex. App.–
Houston [14th Dist.] 2013, no pet.). Further, the presence of a large quantity of
contraband may be a factor affirmatively linking an appellant to the contraband.
See Olivarez, 171 S.W.3d at 291-92.

      The number of factors is not as important as the logical force they
collectively create to prove that a crime has been committed. Robinson, 174
S.W.3d at 326; Evans, 202 S.W.3d at 162. Moreover, the absence of various links
does not constitute evidence of innocence to be weighed against the affirmative
links present. See Wiley v. State, 388 S.W.3d 807, 814 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d); see also Flores v. State, 440 S.W.3d 180, 189 (Tex. App.—



                                         7
Houston [14th Dist.] 2013), judgment vacated on other grounds, 427 S.W.3d 399
(Tex. Crim. App. 2014).

       We 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.

       The evidence tends to support several affirmative links between appellant
and the heroin. Appellant was riding in the Fusion’s front passenger seat when the
car was stopped; therefore appellant was present when officers conducted the
search and found the heroin. The drugs were found in the trunk of the car, which is
an enclosed space. See Robinson, 174 S.W.3d at 327; Vela, 2018 WL 1004699, at
*5. Although the heroin was not within appellant’s physical reach while he was
seated in the front passenger seat, the contraband was conveniently accessible
within the vehicle.3 Officer Marshall testified that an officer popped the trunk
latch from inside the car, from which a rational juror could infer that appellant
would have been able to access the drugs without a key.

       The large amount of heroin discovered in this case also links appellant to the
offense. See, e.g., Robinson, 174 S.W.3d at 328-29; Olivarez, 171 S.W.3d at 292;
Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d) (explaining that amount is factor to be considered in determining if an
affirmative link exists; persuasive weight of this factor increases as the amount of
drugs increases); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.—Houston [1st
Dist.] 1994, pet. ref’d).     Nearly four kilograms, or about seven and one-half
pounds, of heroin is undeniably a large amount of heroin. Such a large amount
strongly links appellant to the drugs. Cf. Robinson, 174 S.W.3d at 328-29 (two

       3
        See Robinson, 174 S.W.3d at 326 (“conveniently accessible” means that the contraband
must be within close vicinity of the accused and easily accessible while in the vehicle).

                                             8
kilograms of cocaine found in trunk of vehicle strongly linked appellant to
contraband); Vela, 2018 WL 1004699, at *6 (eight kilograms of cocaine
affirmatively linked appellant to drugs; jury reasonably could have found that co-
defendant would not bring an innocent bystander to a large-scale narcotics
transaction).

      Additionally, appellant was found in a suspicious place under suspicious
circumstances. He accompanied the driver of the Ford Fusion to a pre-arranged
location at an agreed-upon date to sell a pre-discussed amount of heroin—an
amount of heroin that corresponds with the amount found in the trunk of the car.
Ferrer testified that routinely more than one person is present during a large
quantity drug sale for protection or back-up in case something goes wrong. Ferrer
explained that, based on his experience, when two people arrive on a scene with
four kilograms of drugs, both of them would have knowledge of “what was going
on.” See, e.g., Blackman v. State, 350 S.W.3d 588, 595-96 (Tex. Crim. App. 2011)
(“A jury could reasonably find that [co-defendant] would not bring two innocent-
bystander witnesses hundreds of miles to a large-scale narcotics transaction. A
jury could also reasonably rely on the opinion of an experienced narcotics
investigator that appellant and the other two men acted like narcotics traffickers.”);
Vela, 2018 WL 1004699, at *6 (jury reasonably could have inferred from officer’s
testimony and defendant’s actions that defendant served as security or lookout for
drug sale).

      The jury could infer that appellant’s conduct indicated consciousness of
guilt. Ferrer saw the occupants of the seller vehicle talking to the confidential
source. Ferrer testified that he was communicating with the confidential source to
instruct him on giving information to the drug sellers.        According to Ferrer,
“[e]very time they would be talking back and forth, he will call me and inform me

                                          9
that—what they had said. And that date, we were arranging to have them arrive at
that location.” And appellant was found with a phone in his hand when he was
detained. From this evidence, a juror reasonably could infer that both appellant
and the driver of the vehicle were communicating with the confidential source
about the drug deal.

       As appellant points out, evidence pertaining to several affirmative links were
either not present or not discussed at trial. But the State is not required to establish
all possible affirmative links or present evidence on each factor, and the absence of
some factors is not evidence of innocence that must be weighed against the other
factors present. See Flores, 440 S.W.3d at 189; Wiley, 388 S.W.3d at 814. Rather,
it is the logical force of all the evidence, direct and circumstantial, that is
dispositive. Evans, 202 S.W.3d at 162. We conclude that the logical force of all
the evidence here supports the jury’s finding that appellant possessed the heroin.

D.     Intent to Deliver

       Appellant also states in his brief that there is insufficient evidence that he
intended to deliver the heroin. We construe this statement as a legal sufficiency
challenge.4 We conclude the evidence is sufficient to show the intent-to-deliver
element of the offense.           Intent to deliver contraband may be proved by
circumstantial evidence, including evidence that the accused possessed the
contraband and the quantity of the drugs possessed. Moreno v. State, 195 S.W.3d
321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). An oral expression
of intent by the defendant is not required. Id. at 326. Instead, intent can be
       4
          Because appellant offers no argument or authority in support of his claim, we would be
justified in considering this portion of his challenge waived due to inadequate briefing. See Tex.
R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”); Swearingen v. State, 101
S.W.3d 89, 100 (Tex. Crim. App. 2003). We have nonetheless reviewed the record and will
consider the argument.

                                               10
inferred from the acts, words, and conduct of the defendant. Id. Factors that a
reviewing court may consider in determining intent to deliver include (1) the
nature of the location at which the defendant was arrested, (2) the quantity of the
contraband in the defendant’s possession, (3) the manner of the packaging of the
contraband, (4) the presence of or lack of narcotics paraphernalia for either use or
sale, (5) large amounts of cash, or (6) the defendant’s status as a narcotics user. Id.
at 325. As with the affirmative links analysis, the quantity of the factors is not as
important as the logical force the factors have in establishing the elements of the
offense. Id. at 326. Finally, expert testimony by experienced law enforcement
officers may be used to establish a defendant’s intent to deliver. Id.

      As discussed supra, the amount of heroin found was significant and of a
quantity inconsistent with personal use. See id. at 326 (49.4 grams of heroin
consistent with distribution, rather than personal use). Further, the packaging
inside the brown bag of heroin included Ziploc bags, and there was no personal-
use drug paraphernalia present in the car. Finally, the heroin matched the amount
that Ferrer had discussed purchasing.

      Considering this evidence in the light most favorable to the verdict, a
rational trier of fact could have found the intent-to-deliver element beyond a
reasonable doubt. See id.; see also Jordan v. State, 139 S.W.3d 723, 726 (Tex.
App.—Fort Worth 2004, no pet.) (evidence showed intent to deliver where
(1) accused was arrested in a high-crime area where “drug houses” were located,
(2) accused did not possess any drug paraphernalia indicating an intent to use,
(3) two officers testified that packaging of the drugs, in capsule form and in
individual bags, indicated an intent to sell, and (4) an experienced narcotics officer
testified that the amount of narcotics in accused’s possession indicated an intent to
sell); Misner v. State, No. 04-03-00323-CR, 2004 WL 730838, at *3 (Tex. App.—

                                          11
San Antonio Apr. 7, 2004, pet. ref’d) (mem. op., not designated for publication)
(sufficient evidence showed intent to deliver where officer testified that amount of
heroin (over four grams) was consistent with a person intending to package and
sell, and the record showed that heroin was divided into two separate containers).

                                   *         *     *

      For the foregoing reasons, we conclude that the evidence is sufficient to
support appellant’s conviction for possession with intent to deliver. Accordingly,
we overrule his challenges to the legal-sufficiency of the evidence.

                                     Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice

Panel consists of Justices Wise, Jewell, and Hassan (Hassan, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




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