NO. 07-00-00485-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL A

	MAYAPRIL 20 18 , 2001

	______________________________

	FACUNDO VALDEZ, APPELLANT

	V.

	THE STATE OF TEXAS, APPELLEE

	_________________________________

	FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

	NO. 2000-434,254; HONORABLE CECIL G. PURYEAR, JUDGE

	_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

	Upon a plea of not guilty, appellant Facundo Valdez was charged and convicted by

a jury of possession of a controlled substance with intent to deliver, enhanced by three

prior felonies.  Appellant was sentenced to 45 years confinement and by three issues

contends that (1) the evidence is insufficient to show that he possessed cocaine with intent to deliver, (2) the trial court erred in failing to suppress the cocaine, and (3) he received

ineffective assistance of counsel.  Based on the rationale expressed herein, we affirm.

	When appellant arrived at the T N M & O Bus Station in Lubbock, one K-9 officer

from the Lubbock Police Department and two assisting officers from the Texas Alcohol and

Beverage Commission (TABC), acting on an anonymous tip, were positioned at the bus

station to watch for a suspected drug courier.  The officers had been provided with a

description of the suspect, as well as possible routes the suspect might take through

Lubbock.  The suspect courier was described to officers as a Hispanic male, mid-late

twenties, black hair, brown eyes, beard and mustache, collar length combed back hair,

earring in the left ear, acne pocks on face, and medium-thin build.  Appellant resembled

this description and when he left the bus station, the K-9 officer alerted the TABC officers

that a possible suspect was leaving the building.  When appellant exited the bus station,

he backed into a doorway and attempted to determine if he was being watched.  The two

TABC officers then approached appellant, identified themselves, and asked him to

approach their car.  Appellant threw down a small sack of personal belongings and fled. 

Appellant then attempted to throw a package onto the roof of a nearby building.  He was

unsuccessful; and, in a second attempt, the package landed on the hood of the officers’

car.  Appellant grabbed the package from the hood of the car and fled, only to be tackled

by the K-9 officer when he again refused to stop.  Later, the K-9 officer located a package

containing 27.37 grams of cocaine in the direct flight path appellant had used.  The officers recognized it as being the package they had seen on the hood of their car.  Appellant was

arrested and charged with possession with intent to deliver.

	By his first point of errorissue, appellant challenges his conviction claiming the evidence is

factually insufficient to show that he intended to deliver the cocaine.  A person commits an

offense if he knowingly or intentionally manufactures, delivers or possesses with the intent

to manufacture or deliver a controlled substance . . . .  Tex. Health & Safety Code §

481.112(a) (Vernon Supp. 2001).  An offense under this section is a felony of the first

degree if the amount of the controlled substance to which the offense applies is . . . four

grams or more but less than 200 grams.  § 481.112(d).  Appellant contends the State failed

to show the “intent to deliver” the cocaine.  We disagree.

	  In conducting a factual sufficiency review, the Court of Criminal Appeals has

directed us to ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the fact finder’s determination, or the proof of guilt, although adequate if

taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000).  Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred.  Johnson, 23 S.W.3d at 12.  In conducting this analysis, we may disagree with the jury’s determination, even if probative

evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).  Moreover, the fact finder is the judge of the credibility of the witnesses and the weight to be given their

testimony and may resolve or reconcile conflicts in the testimony, accepting or rejecting

such portions thereof as it sees fit.  Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.

1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).

	Intent to deliver may be shown by circumstantial evidence.  Williams v. State, 902

S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref’d).  The testimony of the K-9

Unit

Officerofficer  established that a quantity of 27.37 grams of cocaine was inconsistent with personal

use.  Further, the cocaine was heat and vacuum sealed inside a freezer bag with rice, a

drying agent, and that bag was ienclosed by two other freezer bags that were also heat and

vacuum sealed.  The officer testified this was common in transportation and preservation

of narcotics to conceal the odor and reduce the chance of canine detection. Additionally,

testimony showed the narcotics were unopened and that appellant stated he would agree

to be drug tested because he had no cocaine in his system. The State also introduced

evidence of appellant’s prior conviction for drug trafficking in Missouri where he was

arrested for possession of a large amount of marijuana.  Intent to deliver can be inferred

from his prior conviction for narcotics transportation in Missouri under Rule 404(b) of the

Texas Rules of Evidence because extraneous acts can be used to show an actor’s intent. 

Castillo v. State, 865 S.W.2d 89 (Tex.App.--Corpus Christi 1993, no pet.). The jury could

have concluded that the evidence was sufficient to show that the appellant was transporting

the drugs with intent to deliver and not for carrying the drugs for personal use.

	Appellant argues that the facts usually demonstrating an intent to deliver are not

present.  Among other things, he argues that he did not have a large amount of money, 

he was not in a known drug location, that he did not have any scales, packaging materials,

or other items to divide the drugs, and that he was a drug user.   However, even if the facts

are as consistent with personal use as they are with intent to deliver, we must defer to the

findings of the jury and presume that they resolved the conflict in favor of the prosecution. 

Mack v. State, 859 S.W.2d 526, 529 (Tex.App.--Houston [1st Dist] 1993, no pet.).  Appellant’s first point of errorissue is overruled.

	By his second point of errorissue, appellant contends the trial court erred in failing to suppress

the cocaine.  We disagree.  In reviewing an appeal from the trial court's denial of a motion

to suppress, great deference is afforded to the trial court's decision on mixed questions of

law and fact that turn on an evaluation of credibility and demeanor.  Guzman v. State, 955

S.W.2d 85, 89 (Tex.Cr.App. 1997).  However, for mixed questions of law and fact which

do not fall within this category, an appellate court may conduct a de novo review of the trial court's ruling.  Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Cr.App. 1998), citing

Guzman.  In other words, de novo review applies only when the facts are undisputed.  State v. Jennings, 958 S.W.2d 930, 932 (Tex.App.--Amarillo 1997, no pet.).  Also,

questions involving reasonable suspicion and probable cause permit an appellate court to

conduct a de novo review.  See Loesch v. State, 958 S.W.2d 830, 832 (Tex.Cr.App. 1997).

	  The State presented the only evidence at the hearing on the motion to suppress. 

Because the evidence was undisputed we will apply a de novo review.  The issues of probable cause and reasonable suspicion are not presented here because appellant

abandoned the evidence when he discarded it during his flight from the officers. 

Hernandez v. State, 963 S.W.2d 921, 925-26 (Tex.App.--San Antonio 1998, pet. ref’d). 

Even if the officers did not have reasonable suspicion to initially stop the appellant, the United

States Supreme Court has held that a fleeing suspect who abandoned contraband before

he was detained by officers was not entitled to protection of the Fourth Amendment

because he was not seized until he yielded to the officers.  California v. Hodari D., 499 U.S.

621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).  The State presented evidence that

appellant fled from officers and that the officers witnessed him attempting to discard a

package.  The officers saw this package as it landed on the hood of their car and later

found this same package in the flight path used by the appellant and determined the contents

to be cocaine.  The cocaine was not on the person of the appellanthis person, thus resulting in no seizure and

therefore, the trial court properly denied the motion to suppress the evidence.  Appellant’s

second point of error isissued is overruled.

	By his third issue, appellant contends that because his attorney did not request an

instruction as required by article 38.23 of the Texas Code of Criminal Procedure that

required the jury to disregard evidence obtained in violation of the Constitution or laws of

the State of Texas or the United States, he therefore received ineffective assistance of

counsel.  We disagree.

	To establish ineffective assistance of counsel, appellant must show (1) trial

counsel’s performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for trial counsel’s

deficient performance, the result of the proceeding would have been different, a

reasonable probability being a probability sufficient to undermine confidence in the

outcome.  Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App. 1986).

	The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel.  Garcia v. State,

887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995).  Although the constitutional right to counsel ensures the right to

reasonably effective counsel, it does not guarantee errorless counsel whose competency

or accuracy of representation is to be judged by hindsight.  Ingham v. State, 679 S.W.2d

503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993).  A strong presumption exists that defense counsel's conduct falls within a wide

range of reasonable representation.  Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, 80 L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).  To sustain a challenge of

ineffective assistance, it must be firmly founded in the record, Mercado v. State, 615

S.W.2d 225, 228 (Tex.Cr.App. 1981), and the defendant must overcome the presumption

that counsel's conduct might be considered sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App. 1994).  After proving error, a defendant must also

affirmatively demonstrate prejudice.  Garcia, 887 S.W.2d at 880.  Failure to make the required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.  Id.

	In any case where there is an issue under article 38.23, the jury must be instructed

that if it believes, or has a reasonable doubt that the evidence was obtained in violation of

this article, then the evidence should not be considered.  However, appellant is entitled to

an article 38.23 instruction in the jury charge only if there is a factual dispute as to how the

evidence was obtained.  Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App. 1986).  As

we noted above, the evidence was not illegally seized because appellant abandoned it

during flight.  Without a factual issue as to whether the evidence was illegally seized,

appellant’s counsel was under no obligation to request the instruction.  We therefore

cannot conclude that appellant was provided ineffective assistance.  Appellant’s third point of errorissue

is overruled.

	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis

						    Justice

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