Giovanni Borrero v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00118-CR
GIOVANNI BORRERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 76th District Court
Titus County, Texas
Trial Court No. 17,812
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
On April 10, 2011, after the tractor-trailer rig driven by Giovanni Borrero was stopped
along a Titus County stretch of Interstate Highway 30 for travelling three miles per hour over the
stated speed limit, Corporal Charles Cannon of the Texas Department of Public Safety conducted
a consensual search and found over a ton of marihuana hidden under other produce in the trailer.
This appeal of Borrero’s resulting conviction 1 for possession of that marihuana turns on whether
there was legally sufficient evidence that Borrero knowingly possessed the marihuana. Because
we conclude that legally sufficient evidence supports that key finding, we affirm the judgment of
the trial court.
In evaluating legal sufficiency of the evidence, we review all the evidence in the light
most favorable to the trial court’s judgment to determine whether any rational jury could have
found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine
legal sufficiency under the direction of Brooks, while giving deference to the responsibility of
the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson, 443 U.S. at 318–19).
Sufficiency of the evidence is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
1
After a jury trial, Borrero was convicted and sentenced to twenty-five years’ imprisonment and assessed a
$5,000.00 fine.
2
The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was tried.” Id.
Borrero was guilty, as charged in the indictment, if he: (1) knowingly (2) possessed
more than 2,000 pounds (3) of marihuana. TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5)
(West 2010). “To prove unlawful possession of a controlled substance, 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.” Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005). Borrero contends that the evidence is insufficient to support findings
that he had knowledge of the contraband and that he exercised control over it.
Mere presence at a location where drugs are found is insufficient, by itself, to establish
actual care, custody, or control of those drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.
App. 2006). When the accused is “not in exclusive possession of the place where the substance
is found, it cannot be concluded that the accused had knowledge of and control over the
contraband unless there are additional independent facts and circumstances which affirmatively
link the accused to the contraband.” Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State,
625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); see Jones v. State, 963 S.W.2d 826, 830 (Tex.
App.—Texarkana 1998, pet. ref’d). Although Borrero was alone in the truck at the time of the
search, the evidence is that the truck did not belong to him and that others had had access to the
truck in the recent past. The truck cannot be said to have been “in his exclusive possession.” To
reason otherwise would mean that any individual driving a borrowed vehicle, or one others had
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used or accessed, was automatically responsible for anything that might be in the vehicle,
whether or not there was any reason for the person to know.
A nonexclusive list of factors that can be sufficient, either singly or in combination, to
establish someone’s possession of contraband include: (1) his or her presence when a search is
conducted, (2) whether the contraband was in plain view, (3) his or her proximity to and the
accessibility of the contraband, (4) whether he or she was under the influence of narcotics when
arrested, (5) whether he or she possessed other contraband or narcotics when arrested,
(6) whether he or she made incriminating statements when arrested, (7) whether he or she
attempted to flee, (8) whether he or she made furtive gestures, (9) whether there was an odor of
contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether he
or she 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 he or she was found with a large
amount of cash, (14) whether his or her conduct indicated a consciousness of guilt, (15) whether
he or she made incriminating statements connecting himself or herself to the contraband, (16) the
quantity of the contraband, and (17) whether he or she was observed in a suspicious area under
suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211 S.W.3d 379,
385–86 (Tex. App.—San Antonio 2006, pet. ref’d); Muckleroy v. State, 206 S.W.3d 746, 748 n.4
(Tex. App.—Texarkana 2006, pet. ref’d); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—
Houston [1st Dist.] 2005, no pet.); Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.—Texarkana
1997, no pet.); see Jones, 963 S.W.2d at 830. The number of links is not dispositive; rather, we
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look to the “logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at
162. In this case, most of the factors set out above do not apply.
Shortly after Cannon stopped Borrero in the truck, Cannon requested, and Borrero
produced, the truck’s log book and papers. Borrero said he was coming from McAllen, but then
changed his answer to Brownsville. He initially said the truck was his, but then said he was just
an employee of the company. According to Borrero, he said he did not intend to mislead the
officer and he explained to Cannon that “George owns the truck” and that he, Borrero, worked
“for a company called Kholy Transportation out of Homestead.”
Cannon noticed that Borrero frequently broke eye contact as he answered questions and
that he was breathing heavy and his neck was becoming flushed and red. Borrero was very
nervous throughout the stop, even after Cannon informed him he would only receive a warning
rather than a citation. Borrero testified that he was nervous because he was afraid of being
arrested as he was “. . . out on bond out of Florida, and you know, I was not supposed to be
leaving the state, out of Florida. I had a charge down in Florida.” He also had some unpaid
traffic tickets in Val Verde.
Borrero produced a bill of lading for the load in the trailer. According to the bill, the
trailer was carrying cilantro, jalapeño, and nopal 2 from Romeo Esparza Produce in Brownsville,
Texas. He told Cannon that he received this load the day before, April 9, and he was delivering
it to Chicago. Borrero told Cannon that he personally watched his trailer get loaded and that he
had been with his truck this entire trip.
2
Nopal is also known as “Prickly Pear” cactus.
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The Trooper asked for and received Borrero’s permission to search the truck and trailer.
Further raising Cannon’s suspicions, when Borrero granted permission to search, Borrero took
his necklace, which contained a picture of Borrero’s daughter, kissed it and dropped it back into
his shirt. Borrero carried the chain everywhere with him, and he testified that he kissed it
because he was afraid of being arrested for leaving the state of Florida while he was out on bond.
At Cannon’s request, Borrero drove the truck to a nearby Walmart parking lot, where the
trailer was searched. During the search, 184 bags of a green, leafy plant substance—
marihuana—wrapped in plastic were found hidden beneath some other produce. Once the
marihuana was found, Borrero became relaxed and calm and looked defeated. He was cited for
falsifying his log book and either having no inspection certificate or an expired certificate.
At trial, Esparza testified that he is in the okra packing business and had been for
eighteen years. His company does not work with cilantro, jalapeno, or nopal. He testified that
he does not ship to Chicago and generally did not ship anything in April. Esparza testified that
the bill of lading Borrero had was fraudulent.
Borrero testified in his own defense. He admitted to making false entries in his log book.
After getting the directions to the warehouse from his boss, he drove there and picked up the
load. He said the warehouse was “in between McAllen and Brownsville somewhere.” He
thought the warehouse was “in the city of Pharr. It was off of Monte Christo Boulevard. That’s
about it.” He said he stayed in the cab of the truck while two or three men loaded the trailer. 3
The men who loaded the truck gave him the bill of lading for the load. Borrero looked at the
3
Compare that with Cannon’s testimony that Borrero claimed he watched while his trailer was loaded.
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load in the trailer and said, “It looks fine to me.” He said he knew nothing about Romeo Esparza
Produce Company. Borrero specifically denied having any knowledge of the marihuana found in
the trailer.
Borrero was driving a truck he did not own. He claimed it was loaded at a warehouse
somewhere between Brownsville and McAllen by two or three other men. By his own
admission, though, Borrero had sole possession of the vehicle during the trip, was present while
the trailer was loaded, and was with the vehicle the entire trip. From the above facts, a
reasonable jury could infer that he knowingly exercised control over the contraband in the trailer.
Borrero was very nervous throughout the stop, even after Cannon indicated he would
receive only a warning. There is evidence Borrero was unfamiliar with some of his paperwork,
as it took him a while to find his insurance and registration. Borrero produced the bill of lading
for the produce in the trailer, but it was later discovered to be falsified, as noted above. Cannon
asked for, and was given, permission to search the vehicle, and the marihuana was found
concealed beneath other produce in the load.
Thus, there is evidence supporting the theory that Borrero was acting as a courier for
someone, moving concealed contraband from one state to another. Borrero’s extreme
nervousness is consistent with knowledge he was so engaged.
Proof of a culpable mental state relies generally on circumstantial evidence, and thus
proof of knowledge is an inference drawn by the fact-finder from all the surrounding
circumstances. Gardner v. State, 736 S.W.2d 179, 182 (Tex. Crim. App. 1987). Mental states
are almost always inferred from acts and words. The mental culpability of a defendant is of such
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a nature that it generally must be inferred from the circumstances in which a prohibited act or
omission occurs. A mental state is concealed within the mind of an individual and can be
determined only from his or her words, acts, and conduct. Moore v. State, 969 S.W.2d 4, 10
(Tex. Crim. App. 1998). All of the evidence taken together would allow a jury to find that
Borrero had the requisite knowledge that he was in possession of contraband. The evidence is
sufficient to support the verdict.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 12, 2013
Date Decided: April 4, 2013
Do Not Publish
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