                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00204-CR

GLORIA FLORES ROBLES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 08-00730-CRF-272


                          MEMORANDUM OPINION


      A jury convicted Gloria Flores Robles of possession of marihuana and the trial

court sentenced her to five years in prison. She challenges: (1) the legal and factual

sufficiency of the evidence; and (2) the denial of her motion to suppress. We affirm.

                             FACTUAL BACKGROUND

      Sergeant Shane Bush stopped a pick-up truck after the driver turned without

properly signaling. The driver and passenger exited the truck. Bush testified that

individuals normally remain in the vehicle, so these actions suggested an attempt by the
occupants to distance themselves from the vehicle or flee. Bush ordered the occupants

to sit inside the truck. The passenger complied, but the driver turned, spoke to the

passenger, and began “messing with something in his waistband and at the front seat.”

The driver suddenly fled. Officers later apprehended the driver, Evaristo Rodriguez.

         As he approached the open passenger door of the truck, Bush smelled the

“overwhelming” odor of raw marihuana. He found four grocery bags behind the

driver’s seat. The bags held two one-pound and eleven quarter-pound individually

packaged Ziploc bags of marihuana. The odor suggested that the marihuana was fresh.

        The passenger, Robles, told Bush that “Jose” was driving her to the store. She

did not know Jose’s last name, but he was a friend whom she did not know well.

Robles denied owning a purse that Bush found in the truck. When a Spanish-speaking

officer arrived, Robles admitted ownership of the purse. The purse contained bags, but

no marihuana. Robles denied any knowledge of the marihuana. Bush testified that the

marihuana could be seen through the sides and tops of the grocery bags, but could not

be reached from the passenger side of the truck. No drugs, contraband, or illegal items

were found on Robles’s person.

        Bush concluded that Robles was attempting to distance herself from Rodriguez

and the truck, something individuals typically do when traffic stops involve a large

amount of marihuana.       Bush explained that the lack of marihuana or smoking

instruments on Robles’s person indicates that she is not a user. He testified that users

do not typically have five pounds of marihuana in their possession.




Robles v. State                                                                   Page 2
        Bush testified that dealers obtain marihuana by the pound. He explained that

the thirteen packages found in the truck indicated that Robles and Rodriguez probably

began with a five-pound load comprised of twelve quarter-pound packages and two

one-pound packages, a quarter-pound of which had already been sold. He explained

that dealers often buy five, ten, or fifteen pounds and then sell quarter-pounds,

sometimes a pound, to other dealers. Based on his training and experience, Bush

concluded that Robles and Rodriguez were mid-level dealers who had received a five-

pound shipment, were trafficking marihuana, and were delivering to low level dealers.

        Analyst Joel Budge testified that the marihuana weighed 4.62 pounds.

        Lieutenant Carey White testified that “Jose Rodriguez” is an alias that Rodriguez

uses. According to White, Robles had visited Rodriguez in jail on several occasions

before her arrest in this case.     Additionally, Robles’s own jail records list “Jose

Rodriguez” as a visitor and her boyfriend.

                        LEGAL AND FACTUAL SUFFICIENCY

        In point one, Robles contends that, under Merrell Dow Pharmaceuticals, Inc. v.

Havner, 953 S.W.2d 706 (Tex. 1997), the evidence is legally insufficient to support her

conviction because the underlying data of Sergeant Bush’s opinions is unreliable. In

point two, Robles contends that the evidence is factually insufficient to support her

conviction because, absent Bush’s testimony, the remaining evidence is against the great

weight and preponderance of the evidence.




Robles v. State                                                                    Page 3
                                      Applicable Law

        A defendant commits unlawful possession of a controlled substance where he:

(1) exercised control, management, or care over the substance; and (2) knew the matter

possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005). When the defendant is not in exclusive possession or control of the place where

contraband is found, the State must affirmatively link the defendant with the

contraband. See id. at 406.

        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.

Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185

S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted).              The Court of

Criminal Appeals has cautioned against use of the term “affirmative links” as

suggesting “an independent test of legal sufficiency” and chosen instead to use only the

term “‘link’ so that it is clear that evidence of drug possession is judged by the same

standard as all other evidence.” Id. at 162 n.9.

        “[S]ome factors which may circumstantially establish the legal sufficiency of the

evidence to prove a knowing ‘possession’” include:


Robles v. State                                                                          Page 4
        (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 narcotic; (4) whether the defendant was under the
        influence of narcotics when arrested; (5) whether the defendant possessed
        other contraband or narcotics 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.

Id. at 162 n.12 (quoting Evans, 185 S.W.3d at 36). “They are not a litmus test.” Id.

                                         Analysis

        Robles contends that Bush failed to provide evidence supporting his opinions

that she was trafficking marihuana, dealers obtain marihuana by the pound, she and

Rodriguez had received a five-pound load and sold a quarter-pound, and she and

Rodriguez are mid-level dealers who probably received a five-pound shipment and

were selling to other dealers. She further points to factors that do not link her to the

marihuana: (1) no forensic evidence was presented; (2) she was not driving the truck; (3)

the marihuana was found behind the driver’s seat; (4) the driver fled, but she followed

Bush’s commands; (5) no cash, packaging materials, weapons, or drug paraphernalia

were found; and (6) no evidence links her to the truck. Robles argues that, absent

Bush’s testimony, the record contains no evidence linking her to the marihuana.

        Assuming, without deciding, that Bush’s opinions are unreliable and insufficient,

the record contains other links connecting Robles to the marihuana. First, Robles was

present when the truck, being driven by her boyfriend, was stopped and searched. See


Robles v. State                                                                        Page 5
Evans, 202 S.W.3d at 162, n.12. Second, the marihuana was found in opaque grocery

bags, but could be seen. See Grant v. State, 989 S.W.2d 428, 434-35 (Tex. App.—Houston

[14th Dist.] 1999, no pet.).         Third, Bush testified that he smelled the odor of raw

marihuana emanating from the open passenger door of the truck. See Evans, 202 S.W.3d

at 162, n.12; see also McGee v. State, No. 07-08-00211-CR, 2009 Tex. App. LEXIS 1492, at

*6-9 (Tex. App.—Amarillo Mar. 6, 2009, no pet.) (not designated for publication).

Fourth, Robles was riding in the truck, an enclosed space, with the marihuana. See

Cabrales v. State, 932 S.W.2d 653, 657 (Tex. App.—Houston [14th Dist] 1996, no pet.); see

also McGee, 2009 Tex. App. LEXIS 1492, at *6-9. Fifth, the truck held a large quantity of

marihuana.        See Cabrales, 932 S.W.2d at 657. Finally, Robles denied knowledge of

Rodriguez’s last name, denied ownership of her purse, and claimed that she barely

knew Rodriguez.1 See Evans, 202 S.W.3d at 162, n.12; see also McGee, 2009 Tex. App.

LEXIS 1492, at *6-9. The absence of links directly connecting Robles to the marihuana is

not evidence of innocence. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston

[1st Dist.] 2008, pet. ref’d).

        Even without Bush’s testimony labeling Robles as a dealer trafficking marihuana,

the jury had evidence before it by which to determine Robles’s guilt. See Gant v. State,

116 S.W.3d 124, 132-33 Tex. App.—Tyler 2003, pet. ref’d); see also Lewis v. State, No. 10-



1         Robles contends that the “logical force of this evidence” is mitigated by the fact that Bush spoke
little Spanish, another Spanish-speaking officer was brought to the scene, and Robles had a translator at
trial. She further contends that no evidence was introduced at trial to show that the purse actually
belonged to her. As the sole judge of the weight and credibility of the evidence, the jury bore the burden
of deciding what to believe. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); see also Wyatt
v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). In doing so, it could reasonably conclude that Robles
made false statements, indicating a consciousness of guilt.


Robles v. State                                                                                      Page 6
04-00225-CR, 2005 Tex. App. LEXIS 4260, at *2-4 (Tex. App.—Waco June 1, 2005, no pet.)

(not designated for publication); Irons v. State, No. 06-06-00192-CR, 2007 Tex. App.

LEXIS 3538, at *7-10 (Tex. App.—Texarkana May 10, 2007, pet. ref’d) (not designated for

publication). The jury bore the burden of evaluating the weight of the evidence. See

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).

        Viewing all the evidence in the light most favorable to the verdict, the jury could

reasonably conclude, beyond a reasonable doubt, that Robles committed the offense of

possession of a controlled substance. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979). The proof of guilt is not so weak nor the conflicting evidence so strong as

to render the jury’s verdict clearly wrong or manifestly unjust. Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.

App. 2000). Because the evidence is legally and factually sufficient to support the jury’s

verdict, we overrule points one and two.

                                 MOTION TO SUPPRESS

        In point three, Robles challenges the denial of her motion to suppress.

                                    Standard of Review

        We apply a bifurcated standard of review to the denial of a motion to suppress.

See Haas v. State, 172 S.W.3d 42, 49 (Tex. App.—Waco 2005, pet ref’d). First, we review

the denial for abuse of discretion. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.

1999). Second, we conduct a de novo review of the law as applied to the facts. See Haas,

172 S.W.3d at 49; see also Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);


Robles v. State                                                                         Page 7
Oles, 993 S.W.2d at 106. The court’s findings receive “almost total deference” and

absent specific findings, we review the evidence in the “light most favorable” to the

ruling. Haas, 172 S.W.3d at 49; Carmouche, 10 S.W.3d at 327-328. The ruling will be

affirmed if “reasonably supported by the record” and correct on any applicable legal

theory. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Cisneros v. State, 165

S.W.3d 853, 856 (Tex. App.—Texarkana 2005, no pet.).

                                         Analysis

        At the suppression hearing, Bush testified that, when the outside lane of traffic

suddenly stopped, he looked ahead and saw a green pick-up truck activate its right turn

signal about twenty feet before the intersection. He testified that this constitutes a

traffic violation because a driver must activate a turn signal one-hundred feet before

turning. Bush explained that he was in the left lane two to three cars behind the truck:

        The truck was ahead of two other vehicles in the outside lane. I was in the
        inside lane. I could see the back of truck. I could see the other cars. I saw
        the car stopping. I changed lanes.

        When I changed lanes to the outside lane, I could look around, and at that
        time saw the right turn signal was activated. That was within about 20
        feet of the intersection.

He explained that he has a different vantage point than the in-dash camera because the

camera is facing straight ahead, but he was able to move and see the signal. He drove

approximately twenty to forty feet before reaching the intersection himself.

        Bush testified that when the pick-up was “within easily 100 feet of the

intersection,” no signal had been activated. According to Bush, the vehicles behind the

truck began “dipping down” as they applied their breaks, indicating that the drivers are


Robles v. State                                                                         Page 8
“stepping on it harder than usual” or “more suddenly than they would if they were

stopping just regularly.” Bush opined that “the car that caused that reaction has either

stopped suddenly or is making a turn unbeknownst to the other drivers around him.”

        When asked if he could identify the truck on the videotape, Bush responded, “I

believe it’s the one that is two ahead on the outside lane.” Defense counsel asked,

“Would it be this one right here?” Bush responded, “I think so, yes, sir.” When asked

to point to the truck, Bush responded, “I think it is this one right here.”

        Citing Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) and Paulea v. State, 278

S.W.3d 861 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d), Robles contends that

Bush failed to provide specific, articulable facts supporting his conclusion that a traffic

violation was committed.2

        In Ford, Trooper Andrew Peavy stopped Ford for following another car too

closely and arrested Ford after findings drugs in the vehicle. See Ford, 158 S.W.3d at

490-91. At a suppression hearing, Peavy testified that he saw Ford “following a white

car, following too close.”      Id. at 491.    The Court of Criminal Appeals found this

testimony insufficient to support reasonable suspicion:

        The evidence before the trial court indicated only that in Peavy’s
        judgment, Ford was following another car too closely in violation of
        Transportation Code § 545.062(a). The State failed to elicit any testimony
        pertinent to what facts would allow Peavy to objectively determine Ford
        was violating a traffic law in support of his judgment.

Id. at 494.



2
        In her motion to suppress, Robles challenged the search of the vehicle. At the suppression
hearing, without objection, she challenged the actual traffic stop.


Robles v. State                                                                            Page 9
        In Paulea, an officer arrested Paulea for outstanding warrants after observing

Paulea’s unattended vehicle parked in a traffic lane. See Paulea, 278 S.W.3d at 862-63. A

subsequent inventory of Paulea’s vehicle yielded evidence of controlled substances. Id.

at 863. At a suppression hearing, the officer testified that Paulea’s “unattended vehicle

stopped in a moving traffic lane of a two-way, two-lane roadway.” Id. at 865. The

Fourteenth Court held that this “meager testimony provided no evidence that any

normal or reasonable movement of traffic, if any, was obstructed or otherwise

impeded” in violation of section 545.363 of the Transportation Code. Id. Nor did the

evidence support a violation of section 42.03 of the Penal Code, “especially in light of

the officer’s uncontroverted testimony that he could ‘easily’ pass appellant’s car.” Id.

The “sparse evidence” failed to “provide the requisite factual support to give an officer

probable cause to arrest” Paulea. Id. at 866.

        This case involves section 545.104 of the Transportation Code, a different type of

violation than the offenses addressed in Ford and Paulea. See TEX. TRANSP. CODE ANN. §

545.104(a)-(b) (Vernon 1999) (Failure to signal within one-hundred feet of turning).

        In Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007), Castro was a passenger

in a vehicle that was stopped for failure to signal a lane change, in violation of section

545.104. See Castro, 227 S.W.3d at 739. Officers found a bag of narcotics and arrested

Castro. Id. Deputy Bailey, who had been investigating Castro’s association with a drug

lab, was called to the scene. Id. At a suppression hearing, Bailey testified that the

vehicle was stopped for “failure to signal a lane change.” Id. Bailey did not witness the




Robles v. State                                                                    Page 10
driver’s actions. See id. The trial court denied the motion to suppress, but the appellate

court reversed. Id. at 740.

        The Court of Criminal Appeals held that the appellate court misapplied Ford:

        The statute at issue in Ford, Transportation Code Section 545.062(a), lists
        factors to consider to determine whether a car is following too closely,
        including the speed of the vehicles, traffic, the conditions of the highway,
        and whether the driver could safely stop. Therefore, the statute makes the
        assessment of that violation a subjective determination. That is not the
        case here. Either a driver signals when changing lanes or he does not.
        Probable cause can be established by objective facts or subjective opinions.
        In the case of subjective opinions, we follow our holding in Ford, that the
        officer must give specific, articulable observations to support his opinion.
        We acknowledge the difference between a conclusory statement and
        specific, articulable facts. However, in cases involving offenses such as
        failure to signal a lane change, a court can determine whether an officer’s
        determination that a driver committed a traffic violation was objectively
        reasonable without being presented with a detailed account of the officer’s
        observations. We agree with Ford that opinions are not an effective
        substitute for specific, articulable facts in a reasonable-suspicion analysis
        when the nature of the offense requires an officer to make a subjective
        determination. Following too closely, speeding, and being intoxicated,
        can be examples of such subjective determinations. Failure to signal a
        lane change is not.

Id. at 742 (internal citations and footnotes omitted). “It was within the trial court’s

discretion to believe or disbelieve the testimony and use it as a basis for the ruling on

the motion to suppress.” Id. at 743. “[I]n the case of offenses requiring only an objective

determination of whether the offense was indeed committed, the court does not need to

know the subjective details of the stop from the officer’s standpoint in order to find that

the stop was reasonable.” Id.

        In light of Castro, failure to signal more than one-hundred feet before turning is

an objective, not a subjective, determination. See Castro, 227 S.W.3d at 743. It was



Robles v. State                                                                         Page 11
unnecessary for Bush to provide a detailed account of his observations. Either a driver

signals more than one-hundred feet before turning or does not. Id. The trial court

evidently believed Bush’s testimony that the driver of the truck signaled less than one-

hundred feet before turning, in violation of the law. Because “[i]t was within the trial

court’s discretion to believe or disbelieve the testimony and use it as a basis for the

ruling on the motion to suppress,” we conclude that the trial court did not abuse its

discretion by denying the motion to suppress. Id. We overrule point three.

        We affirm the trial court’s judgment.




                                                FELIPE REYNA
                                                Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 4, 2010
Do not publish
[CR25]




Robles v. State                                                                  Page 12
