Alejandro Ojeda v. State

COURT OF APPEALS

COURT

OF APPEALS

EIGHTH

DISTRICT OF TEXAS

EL

PASO, TEXAS

ALEJANDRO OJEDA, )

)

No. 08-02-00404-CR

Appellant, )

) Appeal from the

v. )

)

168th Impact Court

THE STATE OF TEXAS, )

)

of El Paso County, Texas

Appellee. )

)

(TC# 20000D03230)

)

O

P I N I O N

Alejandro Ojeda

appeals his conviction for possession with intent to deliver more than four

grams but less than two-hundred grams of heroin. A jury found him guilty and the trial court

assessed punishment at 35 years =

imprisonment. On appeal, Appellant

raises four issues: two deal with

evidentiary matters; one raises a legal insufficiency argument; and the last

issue challenges the trial court = s

denial of Appellant = s motion

to quash indictment. We affirm.

At approximately 8

p.m. on November 3, 1999, Appellant, driving a gray 1991 Chrysler Caravan,

approached the U.S. Customs inspection booth at the Paso Del Norte Bridge. Martha Guerra was sitting in the front

passenger seat. During routine

questioning, Customs Inspector Armando San Roman asked Appellant for his

citizenship, his purpose for traveling to Mexico, and inquired about the

vehicle = s

ownership. Appellant responded that he

was a U.S. citizen, and that he had bought the vehicle about thirty days prior

in Mexico. As he was conducting the

questioning, Inspector San Roman noticed Appellant A moving

around and sitting upright and getting nervous. @ Noticing that the vehicle did not have a

front license plate, Inspector San Roman asked the Appellant and Ms. Guerra for

identification and proceeded to the back of the vehicle. Inspector San Roman testified at trial that

Appellant = s demeanor

by this time was unusual; Appellant was talking loud, getting tense, and then

he sat upright and appeared to be getting anxious. According to Inspector San Roman, Appellant = s nervous behavior was out of the

ordinary. In addition, Ms. Guerra, with

the exception of declaring her citizenship, did not utter a word, although

Inspector San Roman testified that he directed some questions towards her. [1] Inspector San Roman testified that she was

sitting at the edge of her seat, just looking at him; she appeared to be

nervous and anxious. Inspector San Roman

testified that Appellant = s

behavior and Ms. Guerra = s

silence made him get suspicious.

Inspector San

Roman walked to the back of the vehicle and saw that the vehicle = s plates were from Kansas. He returned back to the driver = s side and proceeded to ask the same

questions he had asked before to verify that the answers were the same. This time, Appellant stated that he had been

in Juarez for about two to three hours and that the reason for his trip was to

take Ms. Guerra = s cousin

to Mexico. Inspector San Roman then

noticed that the names on Appellant = s

and Ms. Guerra = s ID = s matched the names provided on a A be on the lookout @ bulletin. Inspector San Roman sent the vehicle to the

secondary inspection station. [2]

Senior Inspection

Officer Maria Elena Frazier was standing at Inspector San Roman = s booth when all this was happening,

and walked alongside the vehicle to the secondary inspection booth. Once the vehicle pulled into the secondary

inspection booth, Inspector Frazier took a declaration from the Appellant in

which he stated that he was not bringing anything back from Mexico. [3] She then had the Appellant and Ms. Guerra

stand away from the vehicle.

Inspector

John Maxwell, trained as a canine enforcement officer, was asked to screen the

Appellant and Ms. Guerra with the canine.

He testified that the canine is trained to alert to marijuana, hash,

cocaine, heroin, and crystal meth, and that he is what is called a passive

alerter. This means that if the canine

gets the odor of narcotics, he changes his behavior by wagging his tail, his

ears come up, his breathing gets heavier, and then he sits next to where the

odor is detected. On this occasion,

Inspector Maxwell testified that the canine alerted to both the Appellant and

Ms. Guerra, who were standing about a foot apart. The canine then went over to the open door of

the vehicle, sniffed the passenger seat and alerted to it as well. Although Inspector Maxwell testified that he

is not trained to search a vehicle with the canine, he testified that the

canine itself does not differentiate between contraband odor on people and

vehicles.

Once

the canine had alerted to the Appellant and Ms. Guerra, Inspector Frazier

escorted Ms. Guerra to the main building.

The Appellant was escorted by a male officer as well. Inspector Frazier placed Ms. Guerra in a holding

cell and then requested the assistance of Inspector Dianne Crissman in conducting

a pat-down of Ms. Guerra. Inspector

Frazier asked Ms. Guerra to stand, put her hands against the wall, and

spread her legs. Initially, Ms. Guerra

did not want to comply and had to be asked several times before Inspector

Frazier had to push open her legs. In

conducting a pat-down of Ms. Guerra, Inspector Frazier felt a foreign substance

in Ms. Guerra = s groin

area. Inspector Frazier asked Ms. Guerra

to remove the object, but it was not until she asked Ms. Guerra if she needed

medical assistance in removing the object that Ms. Guerra complied. Ms. Guerra removed from her vaginal cavity a

condom containing about four to five golf size balls of a black tar like substance

which were wrapped in another condom. The

two condoms combined formed a cylinder like shape. The substance field tested positive as

heroin. Further laboratory testing

confirmed that the substance was in fact pure heroin containing some

adulterants and dilutants, and that it weighed 125.19 grams.

Inspector

Frazier testified that she saw Ms. Guerra walking funny, as if she was holding

something between her legs, but that she had not suspected she was hiding

contraband, until the heroin was found.

Inspector Crissman testified that Ms. Guerra was taking very small

steps, as if she was having a hard time walking.

Upon

searching Ms. Guerra = s

purse, Inspector Crissman testified that she found among other things, a

condom. A search of vehicle uncovered an

open plastic bag sitting in between the driver = s

seat and the passenger = s

seat that contained an unopened box of condoms, an open box of condoms, two

open condom wrappers, and lubricants, one container which was open. The condom in Ms. Guerra = s purse matched the brand on the condom

wrappers and both boxes.

Over

Appellant = s

objections, Officer John Majerczyk, a thirteen-year veteran with the Metro

Narcotics Task Force of the El Paso Sheriff Department, testified that on the

day in question, he responded to a call that an arrest had been made in

connection with some heroin being seized.

He testified that with information provided by a confidential informant,

he placed a A be on the

look out @

bulleting regarding the possible trafficking of heroin. [4] Detective Majerczyk testified that he first

made contact with Ms. Guerra and then went to Appellant = s

holding cell. When he met the Appellant,

Officer Majerczyk stated that the first thing he did was tell Appellant that he

was under arrest and then gave him his Miranda warnings. Without asking Appellant any questions or

informing him that heroin had been found on Ms. Guerra, Appellant told the

officer that he could not be arrested because he was not carrying the

heroin. Officer Majerczyk also testified

that Appellant would not provide a written statement. The officer also noticed heavy tracks of

heroin usage on Appellant = s

forearms. Finally, he testified that the

street value of the heroin seized, once diluted, would be approximately

$100,000.

Over

the numerous and strong objections of Appellant = s

counsel, the State introduced the testimony of Detective Jeff Gibson, of the El

Paso Sheriff = s

Department. Detective Gibson testified

that for the past ten years, he has been involved with the investigation of

gang activity. He also works closely

with the FBI task force on gang activity and has published several documents

regarding his findings. Detective Gibson

testified that he focuses on the Barrio Azteca gang. He testified that Barrio Azteca is a prison

gang that operates both inside and outside the prison system. The gang consists of only male members, some

of which are no longer in prison.

According to Detective Gibson = s

testimony, the primary trade of the gang is the trafficking of narcotics,

primarily heroin. He testified that the

heroin is often carried through at method known as body carrying. He testified that females are often used to

help traffic the heroin, with the normal procedure being that the female hides

the heroin in her body cavity. A male

member of the gang will usually accompany the female to ensure the drugs are

safely delivered. Detective Gibson

testified that he was only familiar with the Appellant from reports and other

investigations. After reviewing this

information, he was of the opinion that Appellant was a member of the Barrio

Azteca gang. According to Detective

Gibson, Appellant had admitted to being a gang member on more than one

occasion, he had been arrested with other known gang members in criminal

offenses, and his tattoos identified him with Barrio Azteca. [5]

Appellant

did not testify at trial nor did he offer any supporting testimony. After hearing

all of the

evidence, the jury found the Appellant guilty of possession of a controlled

substance with the intent to deliver as charged by the indictment. The trial court then sentenced the Appellant

to thirty-five years =

confinement. The Appellant filed a

motion for new trial which was apparently overruled as an operation of

law. Appellant now timely brings this

appeal.

Gang-Membership Testimony

In

Issue One, Appellant contends the trial court erred in admitting

gang-membership and extraneous offense evidence at trial because such evidence

was irrelevant and prejudicial. At the

guilty/innocent phase of the trial, over Appellant = s

numerous objections, the trial judge allowed expert testimony regarding

Appellant = s alleged

affiliation with the prison gang known as Barrio Azteca. The State contends that this evidence was

properly admitted under Tex.R.Evid.

404(b) to prove the Appellant = s

motive, plan, intent, and knowledge of the crime.

In

determining whether a trial court erred in admitting evidence, we apply an

abuse of discretion standard for review.

Mozon v. State , 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999); Green

v. State , 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). A trial court is found to have abused its

discretion when its decision is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.

Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Op.

on reh = g). Absent such a finding, the trial court = s ruling on the admission of evidence

will not be reversed. Green , 934

S.W.2d at 101-02 .

In

order for Rule 404 evidence to be admissible, it must be relevant. See Tex.R.Evid.

402. Our first determination then must

be whether the gang affiliation evidence is relevant under Texas Rule of

Evidence 401. Evidence is relevant if it

has A any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence. @ Tex.R.Evid.

401. Contrary to Appellant = s argument, the gang-membership

evidence was specifically linked to the case and was not used as character

conformity evidence. Detective Majerczyk = s testimony about Appellant = s affiliation with the Barrio Azteca

gang and his testimony regarding Barrio Azteca = s

trade being the trafficking of heroin, primarily by using a female = s body cavity to transport the

contraband, and having that female accompanied by a gang member, was relevant

to the offense. We find that it was

within the zone of reasonable disagreement for the trial court to find the gang

membership evidence relevant. See

Green , 934 S.W.2d at 101-02 .

We

now turn to consider whether the evidence was admissible under Rule

404(b). Texas Rule of Evidence 404(b)

reads:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is

not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident,

provided that upon timely request by the accused in a criminal case, reasonable

notice is given in advance of trial of intent to introduce in the State = s case-in-chief such evidence other

than that arising in the same transaction.

Tex.R.Evid. 404(b).

Under

Rule 404(b), however, same transaction contextual evidence is admissible A only to the extent that it is necessary

to the jury = s

understanding of the offense. @ Pondexter v. State , 942 S.W.2d 577,

584 (Tex.Crim.App. 1996), quoting England v. State , 887 S.W.2d 902, 915

(Tex.Crim.App. 1994). It is admissible

only when the offense would make little or no sense without also bringing in

the same transaction evidence. Id . The conduct must be blended or connected to

the act for which the defendant is being tried so that they form an indivisible

criminal transaction, such that full proof of one could not be given without

showing the other. Mayes v. State ,

816 S.W.2d 79 , 86 n.4 (Tex.Crim.App. 1991).

Same transaction contextual evidence is admissible as an exception under

Rule 404(b) where such evidence is necessary to the jury = s

understanding of the charged offense. Nelson

v. State , 864 S.W.2d 496, 498 (Tex.Crim.App. 1993); Camacho v. State ,

864 S.W.2d 524, 532 (Tex.Crim.App. 1993).

It has long been held that the jury is entitled to know all relevant

surrounding facts and circumstances of the charged offense; an offense is not

tried in a vacuum. Pondexter , 942

S.W.2d at 584 , citing Moreno v. State , 721 S.W.2d 295, 301

(Tex.Crim.App. 1986). The evidence is

not admissible for the purpose of showing character conformity, but rather to

illuminate the nature of the crime alleged.

Camacho , 864 S.W.2d at 532 .

In

this case, evidence regarding Appellant = s

gang membership was interlaced with the offense. Detective Gibson = s

testimony regarding Appellant = s

gang membership provided information essential to understanding the context of

the offense and the circumstances surrounding Appellant = s

involvement with Ms. Guerra. Part of the

explanation included the practice of Barrio Azteca = s

trafficking of heroin in a female = s

body cavity and having that female accompanied by a member of the Azteca = s to ensure safe delivery of the

heroin. Without such evidence, Appellant = s offense would have made little if any

sense; the offense = s

obscurity was eliminated with evidence that the Appellant was a gang member.

Furthermore,

at trial, the State went into an in depth explanation as to the purpose of the

evidence. The State adamantly argued

that the purpose of introducing such evidence was to show motive, intent,

knowledge of the offense, and explicitly stated that the purpose of the

evidence was not to show Appellant = s

character. We therefore find that the

evidence was admissible under Texas Rule of Evidence 404(b).

Appellant

additionally argues that the probative value of the evidence is substantially

outweighed by its prejudicial effect on the jury. Appellant argues that evidence of Appellant = s bad character distracted the jury

from considering whether he was guilty of the crime charged. In essence, Appellant argues that the

Appellant was convicted because he was a gang member. Appellant argues that

this is best demonstrated in the State = s

closing argument.

A

Rule 403 balancing test includes, but is not limited to the following

factors: (1) how probative is the

evidence; (2) the potential of the evidence to impress the jury in some

irrational, but nevertheless indelible way; (3) the time the proponent needs to

develop the evidence; and (4) the proponent = s

need for the evidence. Reese v. State ,

33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000), citing Montgomery , 810

S.W.2d at 389-90 . However, after a

review of the record, we find the State = s

statement in its closing argument made it clear to the jury that the gang

evidence was being used to show motive, intent, and knowledge. We find that the State did not inflame the

jury by mentioning the Appellant = s

gang membership. While we acknowledge

that often times, society looks down upon gang members, and that this could

potentially affect the jury in an emotional way, we note that the evidence in

this case was necessary to provide the jury with a full account of the

offense. As we have stated above, the

two crimes are so intertwined that the evidence of one is necessarily probative

of the other. In light of this, we find

no abuse of discretion on the trial court = s

part in its application of Rule 403. See

id . We find no abuse of discretion

on the part of the trial court in admitting the evidence regarding Appellant = s gang membership, and therefore, we

overrule Issue One.

Motion to Quash Indictment

In

Issue Two, Appellant alleges the trial court erred in denying his motion to

quash the indictment on the basis that it did not provide the Appellant with

adequate notice of the nature of the accusation against him since it failed to

allege how the controlled substance was delivered. Under the Tex.Health

& Safety Code Ann. '

481.002 (8)(Vernon Supp. 2004-05), delivery can be accomplished three different

ways, and Appellant contends that failure to specify which theory the State

would use failed to provide adequate notice of the charge against him as

required by the U.S. Const. amend.

VI and Tex.Const. art. I, ' 10.

In

relevant part, the indictment alleged that on or about November 3, 1999, the

Appellant, A did

then and there unlawfully, knowingly and intentionally possess, with intent

to deliver , a controlled substance, to-wit:

HEROIN, having an aggregate weight, including adulterants or dilutants,

of 4 grams or more but less than 200 grams. @ (Emphasis added). The indictment did not charge the Appellant

with the offense of delivery, but rather with A possession,

with intent to deliver. @ As such, Appellant = s

reliance on Ferguson v. State , 622 S.W.2d 846 (Tex.Crim.App. 1981), to

support his argument fails since Ferguson is not on point. Ferguson is distinguishable from the

case at hand because in that case, the indictment was for A unlawfully, intentionally and knowingly

deliver @ a

controlled substance. Ferguson ,

622 S.W.2d at 849 . In this case, the

indictment was for possession with the intent to deliver. In this case, the State was not required to

prove the particular method of delivery.

Additionally, similar arguments have been rejected. See Pitts v. State , 731 S.W.2d 687,

691 (Tex.App.--Houston [1st Dist.] 1987, pet. ref = d);

Gonzales v. State , 638 S.W.2d 41, 44 (Tex.App.--Houston [1st Dist.]

1982, pet. ref = d). We therefore overrule Issue Two.

Legal Sufficiency

In

Issue Three, Appellant raises a legal insufficiency claim alleging that the

State failed to establish both that Appellant had control and knowledge of the

contraband.

In

reviewing the legal sufficiency of the evidence, we must view 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. Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S.Ct. 2781 , 2788‑89, 61 L.Ed.2d 560, 573 (1979); Lacour

v. State , 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). The standard is the same for both direct and

circumstantial evidence cases. King

v. State , 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We must evaluate all of the evidence in the

record, whether it was admissible or inadmissible. Wilson v. State , 7 S.W.3d 136, 141

(Tex.Crim.App. 1999); Johnson v. State , 967 S.W.2d 410, 412

(Tex.Crim.App. 1998). We do not resolve

any conflict of fact, weigh any evidence, or evaluate the credibility of any

witnesses, as this was the function of the trier of fact. See Adelman v. State , 828 S.W.2d 418,

421 (Tex.Crim.App. 1992); Matson v. State , 819 S.W.2d 839, 843

(Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the

explicit and implicit findings of the trier of fact are rational by viewing all

the evidence admitted at trial in the light most favorable to the verdict. See Adelman , 828 S.W.2d at 421‑22. In doing so, any inconsistencies in the

evidence are resolved in favor of the verdict.

Matson , 819 S.W.2d at 843 .

Possession of a Controlled Substance

A

person commits the offense of possession of heroin if the person knowingly or

intentionally possesses the controlled substance. See Tex.Health

& Safety Code Ann. ' 481.115(a)(Vernon

2003). Possession is defined as A actual care, custody, control, or

management. @ Tex.Health

& Safety Code Ann. '

481.002(38)(Vernon Supp. 2004-05). To

support a conviction for unlawful possession of a controlled substance, the

State must prove that the accused (1) exercised actual care, custody, control,

and management over the contraband, and (2) the accused knew the substance he

possessed was contraband. See Brown

v. State , 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Menchaca v. State ,

901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref = d).

By either direct or circumstantial evidence, the State A must establish, to the requisite level

of confidence, that the accused = s

connection with the drug was more than just fortuitous. @ Brown , 911 S.W.2d at 747 .

When

the defendant is not in exclusive possession or control of the place where the

contraband is found, as in this case, the State must prove independent facts

and circumstances affirmatively linking the defendant to the contraband. Hackleman v. State , 919 S.W.2d 440,

444 (Tex.App.--Austin 1996, pet. ref = d,

untimely filed). An affirmative link

generates a reasonable inference that the accused knew of the contraband = s existence and exercised control over

it. See Brown , 911 S.W.2d at 747 ;

Menchaca , 901 S.W.2d at 651 .

These affirmative links may include: (1) the contraband was in plain

view; (2) the contraband was conveniently accessible to the accused; (3) the

accused was the owner of the place where the contraband was found; (4) the

accused was the driver of the automobile in which the contraband was found; (5)

the contraband was found on the same side of the car seat as the accused was

sitting; (6) the place where the contraband was found was enclosed; (7) the

contraband emitted a strong odor; (8) paraphernalia to use the contraband was

in view of or found on the accused; (9) conduct by the accused indicated a

consciousness of guilt; (10) the accused had a special connection to the

contraband; (11) occupants of the automobile gave conflicting statements about

relevant matters; (12) the physical condition of the accused was compatible

with recent consumption of the contraband found in the car; (13) traces of the

contraband were found on the accused; (14) affirmative statements connect the

accused to the contraband; and (15) the accused possessed other contraband when

arrested. See Nguyen v. State , 54

S.W.3d 49, 53 (Tex.App.--Texarkana 2001, pet. ref = d);

Jones v. State , 963 S.W.2d 826, 830 (Tex.App.--Texarkana 1998, pet. ref = d); De La Paz v. State , 901

S.W.2d 571 , 583‑84 (Tex.App.--El Paso 1995, pet. ref = d).

However, there is no set formula of facts necessary to support an

inference of knowing possession. Hyett

v. State , 58 S.W.3d 826, 830 (Tex.App.--Houston [14th Dist.] 2001, pet. ref = d).

Rather, affirmative links are established by a totality of the

circumstances. Hyett , 58 S.W.3d

at 830 . The number of factors present is

less important than the logical force the factors have in establishing the

elements of the offense. Hurtado v.

State , 881 S.W.2d 738, 743 (Tex.App.--Houston [1st Dist.] 1994, pet. ref = d).

Inspector

San Roman indicated that the Appellant appeared nervous, he was shifting in his

seat, and his voice was first loud and then if became soft. Due to all those factors, Inspector San Roman

testified that he became suspicious and sent the vehicle to the secondary

inspection booth. The jury may have

rationally inferred from this evidence that Appellant = s

knowledge of the contraband was the cause of his nervousness. Detective Majerczyk indicated that without

having questioned the Appellant or mentioned to him where the heroin was found,

Appellant told him that he could not be arrested because Ms. Guerra was the

person in possession of the contraband.

The jury could have inferred from this that the Appellant had knowledge

of the contraband. There was also testimony from Detective

Gibson regarding Appellant = s

gang membership with Barrio Azteca and the gang = s

common method used in trafficking the narcotics, which matched the

circumstances in this case. The jury was

shown photographs of Appellant = s

arms, which had track marks on them, which Detective Majerczyk testified were

an indicator of him being a drug user.

Given the evidence presented at trial, we believe that a rational trier

of fact could easily have inferred that Appellant exercised care, custody, and

control of the contraband. Viewing the

evidence in the light most favorable to the verdict, we conclude the evidence

is legally sufficient to affirmatively link the Appellant to the heroin and to

sustain the conviction. We therefore

overrule Issue Three.

In

Issue Four, Appellant argues the trial court error in admitting hearsay

evidence. Specifically, Appellant

complains the testimony provided by Detective Majerczyk indicating that he

responded to the Paso Del Norte Bridge on the day in question in reference to a

A be on the lookout @ bulletin, which he gave to U.S.

Customs based on information provided to him by an anonymous tip. The State contends that under the law of the

case doctrine, this Court previously addressed this issue and as such, it

should not be revisited. See Howlett

v. State , 994 S.W.2d 663, 666 (Tex.Crim.App. 1999). We agree with the State = s contention.

Under

the doctrine known as law of the case, an appellate court = s resolution of a question of law in a

previous appeal of the same case will govern the disposition of the same issue

when raised in a subsequent appeal. Id .

at 666. This court made doctrine is

designed to promote judicial consistency and efficiency that eliminates the

need for appellate courts to prepare opinions discussing previously resolved

matters. Id . Under this doctrine, trial courts are assured

that they may rely on an appellate court = s

disposition of an issue in the case they are presiding over and gives the trial

courts an incentive to follow those decisions closely. See id .

As

is pointed out in the State = s

brief, and acknowledged in the Appellant = s

brief, this Court has already decided on this issue. In Ex Parte Ojeda , 08-01-00084-CR,

2002 WL 27107 , *3 (Tex.App.-- El Paso January 10, 2002, pet. ref = d)(not designated for publication),

this Court found the same testimony complained-of here, admissible. In that opinion, we stated,

Here the evidence was

not being used to prove that Majerczyk had received information about relator

and to thereby affirmatively establish relator = s

guilt. Instead, the evidence was

intended to provide the circumstances of Majerczyk = s

involvement with the case. The evidence

that was being requested was to provide context for Majerczyk = s presence at the bridge and to explain

the course of events of the evening.

Ex Parte Ojeda ,

2002 WL 27107 at *3.

We

find that Appellant = s

argument is the same today as it was in Ex Parte Ojeda . Our finding today is the same as before. See id . We overrule Issue Four.

We

affirm the trial court = s

judgment.

September

24, 2004

DAVID WELLINGTON

CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew,

JJ.

(Do Not Publish)

[1]

He asked her for her citizenship and if she was bringing anything over from

Mexico.

[2]

He testified that the reasons for sending the vehicle to the secondary

inspection booth were Appellant = s

demeanor and the fact that the names matched those on the bulletin. He further testified that had there been no

bulletin, he still would have sent the vehicle to the secondary inspection

booth.

[3]

Inspector Frazier also testified that she took a declaration from Ms. Guerra,

but does not provide the context of that declaration in her testimony.

[4]

On cross-examination, Appellant = s

counsel requested the name of the confidential informant to be released arguing

that the State under Rule 508B had opened the door because they introduced the

testimony. After a lengthy discussion

outside of the jury = s

presence, the trial court denied Appellant = s

request.

[5]

Introduced into evidence as State = s

Exhibits 25 and 26 were photographs of Appellant = s

tattoos on his arms and right side of his chest. The first photograph showed a tattoo of a

band with the letters BA. The second

photograph contained a symbol which Detective Gibson testified was an Aztec

symbol for eternal war. The third

photograph was an Aztec Indian = s

head. Detective Gibson testified that

based on his experience and training, the tattoo of the band with the letters

BA were a symbol for the name Barrio Azteca.

He then testified that the other two tattoos alone did not indicate a

specific prison gang, but rather were a point of pride for people with an Aztec

descendent. However, combined with the

BA tattoo, they strongly support the conclusion that the Appellant is a member

of the Barrio Azteca gang. Furthermore,

he testified that someone who was not affiliated with Barrio Azteca, but that

had the tattoos on his body, if seen by an Azteca gang member, would be beaten

and then given a chance to remove or cover the tattoo. If they did not, then Detective Gibson

testified that they would be beaten again and possible even killed.