Gloria Flores Robles v. State ( 2010 )

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.
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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
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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.
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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]
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