Adrian Valadez v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00161-CR
ADRIAN VALADEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-2160-C1
MEMORANDUM OPINION ON REMAND
Appellant, Adrian Valadez, was convicted of unlawful possession of marihuana,
a third-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(4). A jury
sentenced him to five years in prison and a fine of $8,500. On original submission,
Valadez raised twenty-seven issues, and this Court overruled all of Valadez’s issues and
affirmed the judgment of the trial court. See generally Valadez v. State, No. 10-17-00161-
CR, 2019 Tex. App. LEXIS 3934 (Tex. App.—Waco May 15, 2019) (mem. op., not
designated for publication), rev’d, No. PD-0574-19, 2022 Tex. App. LEXIS 217 (Tex. Crim.
App. Mar. 30, 2022). The Court of Criminal Appeals reversed this Court’s decision,
concluding that trial court abused its discretion by admitting evidence of nine extraneous
drug offenses over Valadez’s objections. See Valadez, 2022 Tex. Crim. App. LEXIS 217, at
**1-2. The Court of Criminal Appeals remanded this case for a harm analysis. Id. at *27.
The parties have submitted briefing on the narrow issue of whether Valadez was
harmed by the trial court’s erroneous admission of the extraneous drug offenses. Because
we conclude that the trial court’s error did not have a substantial and injurious effect or
influence in determining the jury’s verdict, we affirm the judgment of the trial court.
Harm Analysis
In one issue on remand, Valadez contends that extraneous-offense evidence was
inherently inflammatory and, thus, had an injurious effect or influence on the jury’s
verdict such that his substantial rights were affected. Valadez argues that he was harmed
by the trial court’s erroneous admission of the extraneous-offense evidence and that this
case should be remanded for a new trial “free of such errors.”
FACTS
The Court of Criminal Appeals characterized the facts in this case as follows:
Appellant [Valadez] was the only backseat passenger of a car that was
occupied by two other men and traveling northbound on I-35 outside of
Waco when it was stopped for a window-tint violation.
Trooper Juan Rodriguez, a member of the Department of Public
Safety’s drug interdiction team, testified that upon approaching the car, he
Valadez v. State Page 2
noticed the smell of marihuana. He tried to put the car’s occupants at ease
by telling the driver, Jose Aguillon, that he was going to give him a warning
for the window-tint violation, but the effort to put them at ease failed.
When they were out of the car, Aguillon was fidgeting, and the front seat
passenger, Johnny Penaloza, explained that the flakes of marihuana on his
shorts were actually “linen,” but he meant to say “lint.” Meanwhile,
Appellant pretended to sleep in the back seat, and when he got out of the
car he faked a yawn, avoided eye contact with Rodriguez, and took a
“felony stretch.” Aguillon and Penaloza also stretched which Rodriguez
opined is a way to expel nervousness.
After backup arrived[,] Rodriguez searched the car and discovered
that the odor of marihuana was even stronger in the backseat, which he
rated a seven or eight on a scale of ten. He found marihuana flakes on the
front seat and blunts in the ashtray. A continuously ringing cell phone was
in the console. When he opened the utility door to the trunk from the
backseat[,] the smell increased to a ten out of ten. Over 18 pounds of
marihuana were in the trunk. Most of the marihuana was in two duffle
bags, and the remainder was in the spare tire wheel well. The duffle bags
also contained dirty clothes and an open pack of t-shirts that matched the t-
shirt worn by Aguillon.
The occupants of the car gave inconsistent answers about how long
they planned to be in Waco. Aguillon said they would be there for only a
few hours whereas Appellant said a couple of days. All three occupants
claimed they were going to visit girls in Waco but none named any girls
they knew there. Rodriguez testified that drug runners commonly rehearse
a story about the destination and purpose for their travels but stumble on
the details when pressed for more information.
The car’s occupants did not seem surprised that they were being
arrested. At first, all three denied any knowledge of the marihuana, but
Aguillon and Penaloza ultimately pled guilty to possessing the marihuana.
Appellant claimed he was an innocent passenger but seemed to relax after
the marihuana was found. Rodriguez testified that drug mules do not take
innocent passengers along for the ride; everyone in the car is truly involved.
Drug runners tend to use two or more drivers on a run because time is
money. “If the car ain’t moving, they are not making money. It’s a hurry
up and go, get to the point, drop off, go back, load back up, and go.”
Valadez v. State Page 3
Agent Christopher Dale, an investigator in DPS’s Criminal
Investigations Division, testified over hearsay objections that Appellant
and his two fellow passengers refused to cooperate with his post-arrest
effort to interview them to discover the marihuana’s destination. The
amount of marihuana found was a distribution amount, and people who
run drugs do not bring innocent passengers with them. He expressed the
opinion that the case against the car’s three occupants was “pretty solid”
because they “were in care, custody, and control of the bundles of
marijuana that were in the car.” All three knew or should have known there
was criminal activity in the car because of the odor in it.
Id. at **2-5.
STANDARD OF REVIEW
The violation of an evidentiary rule that results in the erroneous admission of
evidence constitutes non-constitutional error. See Martin v. State, 176 S.W.3d 887, 897
(Tex. App.—Fort Worth 2005, no pet.). Under Texas Rule of Appellate Procedure 44.2(b),
an appellate court must disregard non-constitutional error unless the error affected the
defendant’s substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when
the evidence, viewed in light of the record as a whole, had a substantial and injurious
influence determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997).
[N]on-constitutional error must be disregarded unless it affects the
defendant’s substantial rights. This court will not overturn a criminal
conviction for non-constitutional error if the appellate court, after
examining the record as a whole, has fair assurance that the error did not
influence the jury, or influenced the jury only slightly. In considering the
potential for harm, the focus is not on whether the outcome was proper
despite the error, but whether the error had a substantial or injurious effect
or influence on the jury’s verdict. A conviction must be reversed for non-
constitutional error if the reviewing court has grave doubt that the result of
Valadez v. State Page 4
the trial was free from the substantial effect of the error. Grave doubt means
that in the judge’s mind, the matter is so evenly balanced that he feels
himself in virtual equipoise as to the harmlessness of the error. In cases of
grave doubt as to the harmlessness the petitioner must win.
Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011) (internal citations &
quotations omitted); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
In conducting the harm analysis, we consider everything in the record, including
any testimony or physical evidence admitted for the jury’s consideration, the nature of
the evidence supporting the verdict, the character of the alleged error and how it might
be considered in connection with other evidence in the case, the jury instructions, the
State’s theory and any defensive theories, closing arguments, voir dire, and whether the
State emphasized the error. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005); see
Motilla, 78 S.W.3d at 355-56.
DISCUSSION
Through the testimony of McLennan County Sheriff’s Department Captain Steve
January and Austin Police Department Detective Christopher Thomas, as well as copies
of some of the judgments, the State presented evidence of nine extraneous drug offenses
in which Valadez was purportedly involved. See Valadez, 2022 Tex. Crim. App. LEXIS
217, at **5-7. Eight of the extraneous drug offenses pertained to marihuana and the ninth
extraneous drug offense involved cocaine. See id. The State argued that these offenses
were necessary to rebut Valadez’s defensive theory at trial that he was an innocent
passenger in the vehicle and did not possess the requisite knowledge or intent to possess
Valadez v. State Page 5
the marihuana in this case. However, after reviewing the record as a whole, we have fair
assurance that the erroneous admission of evidence of the extraneous drug offenses did
not have a substantial and injurious effect or influence on the jury’s verdict.
As we noted on original submission, and as stated by the Court of Criminal
Appeals in its March 30, 2022 opinion, other compelling evidence linking Valadez to the
marihuana included:
First, the odor of fresh marihuana was overpowering in the back seat where
Valadez was sitting. In fact, the smell emanated from a utility door leading
to the trunk where Valadez had the most immediate access of any of the
three co-defendants. Additionally, Valadez was nervous and evasive
during the stop. He engaged in “the felony stretch” and was unable to
provide details regarding where they were going and who they were going
to see. Specifically, Valadez stated he was “along for the ride” and that he
wanted to meet girls, but he did not know where they were going or any of
the names of the girls they were going to meet. Trooper Rodriguez’s
testimony that Valadez relaxed and did not act surprised once the
marihuana bundles were found also indicates a consciousness of guilt.
Valadez, 2019 Tex. App. LEXIS 3934, at **9-10; see Valadez, 2022 Tex. App. LEXIS 217, at *21
(“Since the State had other compelling evidence of guilt, the probative value of the
extraneous drug evidence was less weighty than it otherwise might have been.”); see also
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (noting that to prove
unlawful possession of a controlled substance, the State was required to prove beyond a
reasonable doubt that: (1) Valadez exercised control, management, or care over the
substance; and (2) he knew the matter possessed was contraband); see also Tate v. State,
500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (listing factors used when considering
Valadez v. State Page 6
whether the accused was sufficiently linked to contraband)1; Evans v. State, 202 S.W.3d
158, 162 n.12 (Tex. Crim. App. 2006) (same).
In addition, the Court of Criminal Appeals noted Trooper Rodriguez’s testimony
that,
drug mules do not take innocent passengers along for the ride; everyone in
the car is truly involved. Drug runners tend to use two or more drivers on
a run because time is money. “If the car ain’t moving, they are not making
money. It’s a hurry up and go, get to the point, drop off, go back, load back
up, and go.”
Valadez, 2022 Tex. Crim. App. LEXIS 217, at *4. Agent Dale also stated that the amount of
marihuana found in the trunk of the car was a distribution amount; that people who run
drugs do not bring innocent passengers with them; and that all three passengers knew or
should have known there was criminal activity in the car because of the marihuana odor
1 Factors that courts consider when determining whether the accused was sufficiently linked to
contraband include:
(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) the conduct of the defendant indicated a consciousness of guilt.
Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016). Texas courts have recognized that this is a
nonexclusive list of factors that may be sufficient, either individually or in combination, to establish a
defendant’s possession of contraband. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). “It
is . . . not the number of links that is dispositive, but rather the logical force of all of the evidence, both direct
and circumstantial.” Id. at 162.
Valadez v. State Page 7
inside the car. Id. at **4-5. Marihuana flakes were found on the front seat; blunts were
found in the ashtray; and a continuously ringing cell phone was in the console. Id. at *3.
Furthermore, Valadez’s “story about visiting Waco for a couple of days was belied by the
lack of clothing and toiletries corresponding with such a stay and by Aguillon’s
characterization of their plans.” Id. at **20-21.
In addition to the foregoing, the State did not emphasize the extraneous drug
offenses during opening statements or closing arguments. In fact, only two brief
references were made to the extraneous drug offenses during closing argument to show
that Valadez “has had experience with marijuana before . . . .” The focus of closing
arguments was on the facts from the traffic stop. The State did not mention the
extraneous drug offenses during opening statements.
Although requested during the charge conference, the trial court refused to
include a limiting instruction in the jury charge regarding this evidence because defense
counsel did not request a limiting instruction at the time evidence of the extraneous drug
offenses was introduced. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007)
(“This Court has previously held that, if a defendant does not request a limiting
instruction under Rule 105 at the time that evidence is admitted, then the trial judge has
no obligation to limit the use of that evidence later in the jury charge.”); see also Steggall v.
State, No. 10-17-00017-CR, 2018 Tex. App. LEXIS 6228, at *3 (Tex. App.—Waco Aug. 8,
2018, pet. ref’d) (mem. op., not designated for publication) (“The trial court is not required
Valadez v. State Page 8
to include a limiting instruction in the jury charge when no instruction was requested at
the time the evidence was admitted.”).
Based on the foregoing, we have fair assurance that the erroneous admission of
the extraneous drug offense evidence did not influence the jury or influenced the jury
only slightly. See Barshaw, 342 S.W.3d at 93-94. Therefore, we conclude that the trial
court’s error in admitting evidence of the extraneous drug offenses did not affect
Valadez’s substantial rights and, therefore, must be disregarded. See TEX. R. APP. P.
44.2(b). Accordingly, we overrule Valadez’s sole issue on remand.
Conclusion
We affirm the judgment of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed September 21, 2022
Do not publish
[CRPM]
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