Jose Reyes Romero Jr. v. State ( 2021 )

NUMBER 13-20-00103-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE REYES ROMERO JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Jose Reyes Romero Jr. appeals his convictions of evading arrest with a
vehicle, a third-degree felony, and manufacturing or delivering a controlled substance
(methamphetamine), greater than one gram but less than four grams, a second-degree
felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c); TEX. PENAL CODE ANN.
§ 38.04(a), (b)(2)(A). By a single issue, Romero argues the evidence was legally
insufficient to sustain either conviction. We affirm.
I. BACKGROUND
Romero was arrested on charges of evading arrest and manufacturing or
delivering a controlled substance on February 26, 2019. He was indicted on both counts
and pleaded not guilty. The case proceeded to trial, where Romero disputed that he
operated the vehicle or was in possession of any narcotics or contraband found in the
vehicle.
A. State’s Case-in-Chief
Ryan Kelly, an officer with the Victoria Police Department (VPD), testified he was
on patrol at approximately 4:53 a.m. on February 26, 2019, when he observed a blue
Chevrolet Trailblazer being driven without headlights on. Kelly performed a U-turn and
activated his emergency vehicle lights. The driver of the blue Chevrolet, however, did not
stop. For three minutes, the driver disregarded “numerous stop signs [and] red lights”
before coming to a stop in a residential neighborhood in the “back of someone’s driveway
in between two houses.” Kelly immediately approached the vehicle and noted that the
driver’s side door was inoperable because it was pressed against the side of a house. 1
Kelly testified he ran to the passenger side of the vehicle and found the front passenger
door was wide open. A man later identified as Romero was lying on the ground several
feet away. “He was stating that, you know, ‘They went that way. They went that way.’”
Kelly placed Romero under arrest. Kelly testified the immediate area was “fenced in,” and
he did not see anyone else.
1 Photographic exhibits admitted at trial corroborated Kelly’s observations.
2
Kelly searched the vehicle and found an open alcoholic beverage in the center
console and a “black shaving kit” on the front passenger seat. The kit contained
“numerous baggies” of methamphetamine 2 and a wallet with two identification cards:
Romero’s 3 and an unknown female, Lucia Rubio Mendiola. Kelly also retrieved a scale
from the front passenger seat, which he testified was indicative of “sales and distribution
of narcotics.”
On cross-examination, Kelly was asked whether it was possible that Romero had
been seated outside on a nearby stairwell and had fallen on the ground when the vehicle
collided nearby, as Romero claimed. Kelly responded, “When I pulled into the driveway—
it may not show it on camera,[ 4] but with my eyes I didn’t see anybody fall from the
stairwell. So to me that was impossible.”
VPD Officer Christopher Yogi testified he responded to Kelly’s calls for assistance
during Kelly’s active pursuit of Romero’s vehicle. Yogi testified Romero and Kelly passed
him going in the opposite direction on a two-way residential street, but pursuant to VPD
protocol, Yogi did not attempt to block Romero’s vehicle with his own.
I looked into the vehicle. I saw the subject in the vehicle. All I could see at
that time appeared to be—was a Hispanic male, fairly that was . . . slim
build; and then he was wearing kind of like the tank tops but with the—I
don’t know—with the shorter sleeves or the thinner shoulder strap.
2Roman Gonzales, a forensic scientist with the Texas Department of Public Safety, testified to the
weight and chemical relation of the items tested. Gonzales said there were “four bags” submitted by law
enforcement for testing, but only one bag was analyzed. “The results of my analysis was that the evidence
contained 1.13 grams of methamphetamine,” testified Gonzales.
3Law enforcement found a Texas Department of Criminal Justice-issued identification card, which
displayed Romero’s photograph, name, date of birth, inmate identification number, and issuance date.
4 Kelly’s vehicle dash camera and body camera recordings were admitted into evidence.
3
Yogi identified Romero as the driver of the vehicle. Yogi was the second officer at the
scene, and he helped Kelly search the vehicle. Yogi also noted that Romero’s vehicle
appeared to have been “hot[-]wired.”
VPD Officer John Ortiz testified he arrived after Romero had been restrained by
Kelly and Yogi. Ortiz said he was tasked with searching around the area “for any signs of
any other people.” Ortiz testified he did not see anyone.
Jail call recordings were also admitted into evidence. In one call, Romero can be
heard telling his girlfriend, Crystal Trevino:
When I left I was just tripping, man . . . I just took off, and my lights were off.
I didn’t realize and the cop got behind me, and I was, like, man, f-ck this
fool. I ain’t gonna let them in my car no more. I just kept driving straight,
man, and I just drove to the house and parked my car so they don’t take it.
Romero claimed he wanted the confiscated narcotics reweighed because he knew he
had “less than an eight ball.” Romero also reminded Trevino that his vehicle needed to
be hot-wired to start.
B. Defense’s Case-in-Chief
Trevino testified that she was unsure of whether, during a jail call, Romero
admitted to her that he had been driving the night he was arrested. “I’m not sure. He
probably admitted it to me, but I was halfway asleep.” Trevino said she was primarily
concerned with retrieving some of Romero’s belongings during her conversation with
Romero. Trevino testified that when she later went to the jail to pick up Romero’s
belongings, she was given two different wallets. One wallet contained an identification
card and Visa card for Thomas Vladimer Simon, a name she did not recognize. Another
wallet contained identification cards for Romero and Mendiola, who she stated is
Romero’s mother.
4
Romero testified that he was thirty-nine years old, born in Houston but raised
“mostly in Dallas,” and grew up in foster care from the age of four years old until he “aged
out.” Romero said he was convicted of aggravated robbery and sentenced to ten years’
imprisonment in 2001. After he was released from prison, he was arrested and convicted
of the offense of felon in possession of a firearm. 5 Romero said he was placed on
probation but later arrested for driving while intoxicated (DWI), third or more. His
community supervision was revoked in his firearm possession case, and he was
sentenced to two years’ imprisonment on August 27, 2014; Romero was also convicted
in the DWI case and sentenced to eight years’ imprisonment. Romero said he “paroled
out” on July 7, 2018—seven months before his evading arrest.
According to Romero, he moved to Port Lavaca after he became reacquainted with
his biological mother, Mendiola, and “found out [he] had eight sisters and a brother.” When
asked “[w]ho was in the car that was being followed by the police” that evening, Romero
said it had been Mendiola “and some guy friend she was with.” Romero maintained he
had arrived at the residence 6 to find Mendiola and her friend drinking; they asked to
borrow his car, and he loaned it to them. Romero testified that he went to sleep and was
later awoken by a phone call from Mendiola. She claimed the police were trying to pull
them over, and Romero said he instructed Mendiola to stop, but she refused because she
had drugs in the vehicle. “And I asked her what she had on her, and she said something
5 According to Romero’s criminal records that were admitted at trial, Romero was arrested for the
offense of felon in possession of a firearm on March 30, 2011, and he was placed on community supervision
on August 30, 3012.
6 Elsa Munoz testified that her sister, Maria Herrera, owns the property Romero was arrested on.
Munoz testified that Romero had permission to be on the property, and he would stay there periodically
although it was not his permanent residence because it lacked electricity or running water.
5
about under eight—she said, [‘]I have an eight ball.[’]” Romero suggested that the
methamphetamine found in the vehicle might have belonged to her friend.
Romero said he ran outside and witnessed the car come to a rolling stop; Mendiola
and her friend jumped out of the vehicle and ran into the residence. Romero testified he
“didn’t want to tell on [his] mom,” so he told officers he had seen two people run in an
opposite direction. “I was just trying to protect my mother. But after she passed away on
Thanksgiving, I figured that I didn’t have to try to protect her no [sic] more.”
Romero denied being intoxicated that evening and stated, “I’ve never done drugs
in my whole life. I’ve never smoked marijuana. I’ve never done no kind of drugs.” Romero
testified that the black bag retrieved by police was not a shaving kit, but rather, it was a
makeup bag that belonged to Mendiola—as did the wallet found inside of it. Romero said
Mendiola kept his old identification card with her because she had become sentimental
after they reunited.
When confronted with the jail call recordings during cross-examination, Romero
stated that he knew he was being recorded and only assumed responsibility to “protect
[his] mother.” When asked why he would specifically tell Trevino that if he was released,
he would not drink, do or sell drugs anymore, Romero again reiterated that everything he
said on the recordings was to protect his mother.
The jury returned a guilty verdict. Following a hearing on punishment, the jury
found two prior enhancement paragraphs true and assessed punishment at sixty years’
imprisonment for each count to run concurrently. See TEX. PENAL CODE ANN. § 12.42(d).
This appeal followed.
6
II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, Romero argues the evidence was legally insufficient to support
either conviction.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of the evidence to support a conviction, we consider
the evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).
We consider both direct and circumstantial evidence as well as all reasonable
inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in
establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt.
Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018); Temple v. State, 390
S.W.3d 341, 359 (Tex. Crim. App. 2013). “Each fact need not point directly and
independently to the guilt of a defendant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Walker v. State, 594
S.W.3d 330, 335 (Tex. Crim. App. 2020) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007)). We resolve any evidentiary inconsistencies in favor of the verdict,
keeping in mind that the fact-finder is the exclusive judge of the facts, the credibility of the
witnesses, and the weight to give their testimony. Walker, 594 S.W.3d at 335; see TEX.
CODE CRIM. PROC. ANN. art. 38.04.
Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. See Metcalf v. State, 597 S.W.3d 847, 856 (Tex.
7
Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997));
Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). The hypothetically correct
jury charge accurately 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. Walker, 594 S.W.3d at 336.
Here, a hypothetically correct charge would instruct the jury to find Romero guilty
of evading arrest with a vehicle if the State proved beyond a reasonable doubt that
(1) Romero (2) intentionally (3) fled (4) from a person he knows is a peace officer
(5) attempting to lawfully arrest or detain him, and (6) Romero used a vehicle while in
flight. See Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005); see also TEX.
PENAL CODE ANN. § 38.04(a), (b)(2)(A).
The State was also required to prove beyond a reasonable doubt that (1) Romero
(2) knowingly (3) possessed (4) between one and four grams of methamphetamine with
(5) intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c). “Knowingly
possessed” requires proof that an actor (1) exercised “actual care, custody, control, or
management” over the substance and (2) knew the substance was contraband. 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 ANN. § 481.002(8).
“‘[E]vidence which affirmatively links [an appellant] to [a controlled substance]
suffices for proof that he possessed it knowingly.’” Barbosa v. State, 537 S.W.3d 640,
645 (Tex. App.—San Antonio 2017, no pet.) (quoting Brown v. State, 911 S.W.2d 744,
8
747 (Tex. Crim. App. 1995) (en banc)). “By its nature, a culpable mental state must
generally be inferred from the circumstances.” Nisbett v. State, 552 S.W.3d 244, 267
(Tex. Crim. App. 2018); Duntsch v. State, 568 S.W.3d 193, 216 (Tex. App.—Dallas 2018,
pet. ref’d) (“Proof of mental state will almost always depend upon circumstantial
evidence.”). Additionally, the State need not show exclusive possession of the contraband
to support a conviction; control over the contraband may be exercised by more than one
person. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d).
B. Analysis
Romero specifically argues the evidence is insufficient to support his convictions
for evading arrest with a vehicle and manufacturing or delivering a controlled substance
because the State failed to establish his identity as an element of either offense.
1. Evading Arrest
With respect to his evading arrest with a vehicle conviction, Romero contends that
the State’s evidence did not establish beyond a reasonable doubt that he was the driver
of the vehicle because: “Officer Kelly never testified to seeing [him] inside the vehicle or
driving the vehicle,” “Yogi believed that [he] was the same person he observed driving the
vehicle but the State offered no proof in support,” and Romero testified that it was
Mendiola and her male companion operating the vehicle.
First, we observe that Romero conceded the blue Chevrolet is his vehicle. Yogi
testified he observed a male matching Romero’s description driving the vehicle. Although
it was dark outside, Yogi’s lights and Kelly’s lights sufficiently illuminated Romero’s
vehicle, and Romero’s vehicle closely passed Yogi’s vehicle going less than 20 m.p.h. on
the residential street. Moreover, as evidenced by footage from both Kelly’s body camera
9
and patrol dash camera, after Romero came to a stop, the driver’s door was blocked in
by a wall, and less than twenty seconds elapsed between when Kelly stopped his patrol
unit and made contact with Romero, who was lying beside the vehicle on the passenger
side. Kelly explicitly disclaimed the possibility that Romero was only fortuitously there
because he had jumped or fallen from a nearby stairwell, stating it was neither captured
on camera nor did he see it happen. Ortiz confirmed he found no other persons after
searching the area. Finally—although Romero testified that he was being untruthful at the
time—Romero admitted to driving the vehicle and fleeing from police in jail call recordings.
See Ex parte Mayhugh, 512 S.W.3d 285, 298 (Tex. Crim. App. 2016) (“[T]he fact-finder
is free to believe all, part, or none of a witness’s testimony.”).
Based on this evidence, a rational trier of fact could have reasonably concluded
that the State established the identity of Romero as the driver of the vehicle beyond a
reasonable doubt. See Walker, 594 S.W.3d at 335; see, e.g., Phillips v. State, 534 S.W.3d
644, 651–52 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (holding evidence was
sufficient to establish the identity of appellant as the driver when the officer testified that
he “was able to see into the vehicle and identify appellant as the driver of the vehicle”);
Fabela v. State, 431 S.W.3d 190, 194 (Tex. App.—Amarillo 2014, pet. dism’d) (holding
same when all officers involved in chase identified the driver as a Hispanic male, one
officer identified the driver as the sole occupant of vehicle, and the appellant made several
incriminating statements); Castilla v. State, 374 S.W.3d 537, 540 (Tex. App.—San
Antonio 2012, pet. ref’d) (holding same when the appellant’s documents were located in
the vehicle and the arresting officer testified that he “got a ‘good look’” at the driver when
driver almost crashed into his patrol vehicle).
10
2. Possession
Regarding the offense of manufacturing or delivering a controlled substance,
Romero challenges the element of possession, arguing that that the evidence fails to
“affirmatively link” him to the controlled substance. Having already established supra that
Romero was driving the vehicle prior to his arrest, the question on appeal is not whether
the drugs could have belonged to someone else—i.e., his mother or her friend, as he
asserts—but instead, whether the evidence provided sufficient affirmative links to connect
Romero to the methamphetamine found in his vehicle. See Tate v. State, 500 S.W.3d
410, 413–14 (Tex. Crim. App. 2016); Barbosa, 537 S.W.3d at 645.
“When the contraband is not in the exclusive possession of the defendant, a fact
finder may nonetheless infer that the defendant intentionally or knowingly possessed the
contraband if there are sufficient independent facts and circumstances justifying such an
inference.” Tate, 500 S.W.3d at 413–14. The Texas Court of Criminal Appeals has
summarized a non-exclusive list of factors for reviewing courts to consider in the
affirmative links analysis:
(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. (quoting Evans, 202 S.W.3d at 162 n.12). It is “not the number of links that is
dispositive, but rather the logical force of all of the evidence, direct and circumstantial.”
11
Evans, 202 S.W.3d at 162. As explained below, we conclude that the evidence of
affirmative links in this case was sufficient to support appellant’s conviction.
The methamphetamine in this case was found inside a black bag on the passenger
seat of a vehicle owned by Romero and operated by him at the time of the traffic stop that
led to the seizure. Though the methamphetamine contained no acknowledged odor and
was not in plain view inside the vehicle, the black bag containing the methamphetamine
had a wallet with Romero’s identification card. Moreover, a scale was found in plain view,
located right next to the black bag. At the time of his arrest, Romero denied driving the
vehicle or possessing the contraband found inside, but officers did not identify any other
individuals in the vehicle during the chase, there were no other persons found to be in the
immediate vicinity of where the vehicle stopped, and Romero admitted to driving the
vehicle and knowing the weight of the methamphetamine in audio recordings of jail phone
calls admitted at trial. The jury was free to disbelieve Romero’s explanations to the
contrary. See Walker, 594 S.W.3d at 335.
Having reviewed the affirmative links present and based on the totality of the
circumstances, the jury could have reasonably found that Romero exercised actual care,
custody, control, or management of the methamphetamine that was found in his vehicle.
See Tate, 500 S.W.3d at 413–14; Medina v. State, 565 S.W.3d 868, 874 (Tex. App.—
Houston [14th Dist.] 2018, pet. ref’d) (concluding the appellant was in possession of drugs
when evidence indicated the “appellant was the only person in the vehicle when it was
stopped, and it contained several belongings that were admittedly his”); Hines v. State,
535 S.W.3d 102, 107 (Tex. App.—Eastland 2017, pet. ref’d) (concluding sufficient
affirmative links to tie appellant with methamphetamine found under the driver’s seat
where “the police initiated a stop of the vehicle driven by Appellant, he turned a corner,
12
stopped, got out, and walked away,” “one of the officers testified that he saw Appellant
driving the vehicle and that no one else was inside it,” and marihuana was found in
Appellant’s pockets); see also Hardaway v. State, No. 13-15-00507-CR, 2017 WL
3431827, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 10, 2017, pet. ref’d) (mem. op.,
not designated for publication) (concluding that though only two affirmative links were
present, “the cumulative weight of the evidence, along with all reasonable inferences the
trial court could draw, sufficiently establishes affirmative links that support the trial court’s
finding of guilt”). Romero does not challenge any other elements of the offense. A rational
trier of fact could have therefore reasonably concluded Romero knowingly possessed
between one and four grams of methamphetamine with intent to deliver. See TEX. HEALTH
& SAFETY CODE ANN. § 481.112(a), (c); Stahmann, 602 S.W.3d at 577.
Thus, the evidence is sufficient to support both of Romero’s convictions, and we
overrule his sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
18th day of March, 2021.
13