NO. 07-05-0087-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B DECEMBER 29 , 2006

______________________________ ANIBAL HERIBERTO VALLE, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 31 ST DISTRIC T COURT O F W HEELER CO UNTY; NO. 3972; HON ORABLE STEVEN R. EMMERT, JU DGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
DISSENTING OPINION
Because I disagree that the evidence is factually insu fficient to support the convicti on, and would affirm the trial court’s judg ment, I must respec tfully dis sent from the Court’s dec ision to rev

erse.
I agree w ith the Court that theofficers’ descr iptions of appell ant’s demeanor during the search of

his tractor-trailer rig shed littlelight on t he issue of his k nowing p ossession of the hidden marij uana. But, coupled with the undisputed evi dence of appellant’ s sole1 See Menchaca v. S tate , 901 S.W.2d 640, 652 (Tex.App.–El Paso 1995, pet. r ef’d) (knowledge of presence of con traband inferred f rom control of vehicle i n some circumstances).

2 United St at es v. Ga rza , 99 0 F.2d 171, 174 (5 th Cir. 1993) (finding ci rcumstantial evidence supported conclu sion o f truck driver’s know ing possess ion when dr ugs hidden and not readily accessible to driver). The facts in Ga rza are similar to those in our pres ent case. After the tractor trailer rig Gar za wasdrivin g was s topped at a checkpoi nt , Border Patrol agents found cocaine co ncealed in his load of limes. 99 0 F.2d at 173. In additi on to his control and owners hip of the truck, the appe llate court found Garza’s guilty knowledge of the pres ence of the cocaine w as supported by

his nervousness and trembl ing; a false bill of lading hidden in the truck; his admitted falsificat ion of his log book, accompanied by an im plau sible expla nati on; t he “e norm ous” quan tity of cocaine found; an d suspiciouscircumstances involv ing Garz a’s delaye d departure and hi s aban donmen t of his u nlocked truck for a ti me. Id . at 176. The federal court’s analy sis can be see n as a n application of the same type of “links” analysis Texas courts perform to evaluate evidence of a defendant’s know ing possess ion of drugs found on premises not s olely in the defendant ’s possession. See Bethancourt-Ros ales v. State , 50 S.W.3d 650, 653-55 (Tex.Ap p.–W aco 200 1, pet. ref’d) (c iting Ga rza in links analysis ). 2 control of the rig 1 both before and after the cargo was loade d, I think the inference of appellant’s guilt y knowledg e of the illic it part of his cargo is sufficiently s upported by t he evidence of appel lant’ s cro ss-country trans portat ion of an emp ty trail er, followed by his cross-countrytransportati on of the trailer aquarter- full of cargo; ap pellant’s ac knowledg ed presence when the cargo was loaded in Los Angeles; the manner in w hich the carg o was loaded, with the charcoal bag s stac ked on the pallet reach ing almost to the top of the trailer, hiding the shorter palle ts of corn flour; the nat ure of the carg o documentation appellant

carried; t he $3820 total val ue of the legal cargo compared with the muc h greater value of the marijuana; that, although the cargo doc umentation wassomewhat cons istent with appellant’s testimony about the circumstan ces under w hich he took pos session of the cargo, the documentation eas ily can be read to indicate hepaid cash, at least for the corn flour; and appellant’s purchase an d use of a lock for the trailer af ter his cargo was loaded. 2 I w ould find th at, view ing all t he evidence i n a neutral li ght, the ev idence supporti ng an3

inference of a ppe llan t’s gu ilty k nowl edge of the presence of the marijuana is not so obviouslyweak as to undermine confidencein the jury ’s verdi ct. See Johnson v. Sta te , 23 S.W .3d 1, 11 (Tex.Crim.App. 2000 ) (setting out factual suff iciency standard of review).
As I understand the record, except for the invoices and the copy of appellant’s truck lease, the only evidence supporting his versions of the purpose of his trip to Los An geles and of the circumstances surroun ding the loading of cargo comes from appellant’s test imon y. I conclude al so th at t he jury’s apparent rejection of parts of appellant’s story and its finding of his knowing possession of the marijuana are not greatl y outwei ghed by contrary proof. Johnson v. State , 23 S.W.3d at 11. James T. Campbell Justice
Publish.