                             NUMBER 13-09-00062-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ELADIO VALADEZ,                                                               Appellant,

                                             v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 105th District Court
                          of Kleberg County, Texas.


                          MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza
       Appellant, Eladio Valadez, was convicted by a jury of possession of 2,000 pounds

or less but more than fifty pounds of marihuana, a second-degree felony. See TEX . HEALTH

& SAFETY CODE ANN . § 481.121(b)(5) (Vernon 2003). The offense was enhanced to a first-

degree felony after the trial court found that Valadez was a repeat felony offender. See

TEX . PENAL CODE ANN . § 12.42(b) (Vernon Supp. 2008). The trial court sentenced Valadez

to twenty years’ incarceration. On appeal, Valadez argues that (1) the evidence was

legally and factually insufficient to support his conviction, and (2) the punishment assessed

by the trial court was unconstitutionally disproportionate to the seriousness of the offense.
We affirm.

                                      I. BACKGROUND

       On April 6, 2008, Valadez’s white GMC pickup truck was stopped at the United

States Border Patrol checkpoint in Sarita, Texas. At trial, Border Patrol Agents Jose

Frausto and Carlos Nunez identified Valadez as the individual driving the truck. Agent

Frausto testified that the truck bed appeared to be filled with boxes of oranges and that

Valadez acted “extremely nervous” upon being stopped:

       First [Valadez] answered my question whether he was a U.S. citizen like in
       a nervous tone. Also his eyes were wide open like this (Indicating) and also
       he was smoking a cigarette at that time and his hands were shaking like this
       (Indicating) and he was dropping all his ashes on his legs, his pants.

Agent Nunez, a K-9 handler, testified that his dog, who was trained to alert on contraband

including marihuana, performed a “free air non-instrusive sniff” of the vehicle and alerted

to the back end of the truck. The agents searched the bed of the truck and discovered,

underneath the boxes of oranges, several bundles wrapped in cellophane and black

plastic. The bundles were confirmed to contain, in total, 182 pounds of marihuana.

       On cross examination, Agent Frausto testified that Valadez was accompanied in the

truck by a passenger, Sherry Marksberry. After Agent Frausto administered Miranda

warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), Marksberry gave a statement in

which she said that Valadez did not know there was marihuana in the truck at that time.

She further told Agent Frausto that she had smuggled marihuana on several prior

occasions and that Valadez was with her on every occasion.

       At trial, however, Marksberry testified that Valadez did in fact know of the marihuana

in the truck on April 6, 2008. She stated that she and Valadez had picked up the

marihuana in Roma, Texas, and were transporting it to Corpus Christi when they were

stopped in Sarita.   Marksberry acknowledged that she had previously claimed sole

responsibility for possession of the marihuana in her statement to Agent Frausto.

However, Marksberry stated she did so at Valadez’s behest because “he had had previous

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charges” and was not eligible for probation.1 Marksberry further acknowledged that the

prosecutor had promised her, in exchange for her truthful testimony at trial, that he would

write a letter to her parole board recommending parole and outpatient treatment for her

drug addiction.2

        After hearing the evidence, the jury found Valadez guilty. The trial court found as

true the allegations contained in the State’s enhancement paragraph3 and assessed

Valadez’s punishment at twenty years’ imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. This appeal followed.

                                              II. DISCUSSION

A.      Evidentiary Sufficiency

        By his first issue, Valadez contends that the evidence adduced at trial was both

legally and factually insufficient to support his conviction.

1.      Standard of Review

        We review the legal and factual sufficiency of the evidence supporting a conviction

under well-established standards. In conducting a legal sufficiency review, 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.

Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference

to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper



         1
           Valadez’s trial counsel objected to Marksberry’s statem ent that Valadez “had had previous charges”
and m oved for a m istrial. The trial court denied the objection and the m otion. Valadez does not contest those
rulings on appeal.
        2
          Marksberry testified that she had previously been convicted in a separate trial and sentenced to five
years’ im prisonm ent.
        3
          The enhancem ent paragraph alleged specifically that Valadez had previously been convicted of a
felony offense in Ellis County, Texas, in 1996. See T EX . P EN AL C OD E A N N . § 12.42(b) (Vernon Supp. 2008)
(providing that, if it is shown on the trial of a second-degree felony that a defendant has been previously
convicted of a felony, the conviction shall be enhanced to a first-degree felony).

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v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,

318-19 (1979)). We are not required to determine whether we believe that the evidence

at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting

evidence, we must presume that the trier of fact resolved any such conflict in favor of the

prosecution, and we must defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex.

Crim. App. 1993). In conducting a factual sufficiency review, we consider the evidence in

a neutral light. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). The

verdict will be set aside only if (1) it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust, or (2) it is against the great weight

and preponderance of the evidence. Id. at 415 (citing Johnson v. State, 23 S.W.3d 1, 10

(Tex. Crim. App. 2000)).

       Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref’d). Under a hypothetically correct jury charge, Valadez committed the charged offense

if he knowingly or intentionally possessed a usable quantity of marihuana in the amount

of 2,000 pounds or less but more than fifty pounds. See TEX . HEALTH & SAFETY CODE ANN .

§ 481.121(b)(5). To prove unlawful possession, the State must show that Valadez

exercised actual care, control, and management over the contraband and that he had

knowledge that the substance in his possession was contraband. King v. State, 895

S.W.2d 701, 703 (Tex. Crim. App. 1995). The State must establish, either by direct or

circumstantial evidence, that Valadez’s connection with the contraband was more than

merely fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence

that “affirmatively links” Valadez to the contraband is sufficient to prove that he possessed

it knowingly. Id.




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       2.     Discussion

       The trial evidence, including testimony by Agents Frausto and Nunez, established

that Valadez was driving a truck that contained 182 pounds of marihuana hidden under

boxes of oranges. Nevertheless, Valadez points to the following facts in arguing that the

evidence was legally and factually insufficient to support his conviction for possessing the

marihuana: (1) Marksberry had made a confession to Agent Frausto in which she stated

that Valadez did not know of the marihuana hidden underneath the oranges; (2)

Marksberry changed her story at trial and testified there that Valadez did, in fact, know of

the hidden marihuana; (3) the State promised to write a letter to the parole board

recommending parole for Marksberry “in exchange for her ‘truthful’ testimony against

[Valadez]”; and (4) Valadez did not testify on his own behalf at trial. Valadez argues that

“the above reasons should have raised reasonable doubt as to [his] guilt since

[Marksberry’s] testimony was suspect, obviously opportunistic, and orientated to her

extraction from the misery of prison life.”

       While Marksberry may not strike Valadez as an ideally trustworthy or credible

witness, it is the jury’s sole responsibility to judge the credibility of witnesses, and the jury

is free to believe or disbelieve any portion of a witness’s testimony. Cain v. State, 958

S.W.2d 404, 408-09 (Tex. Crim. App. 1997); Ortega v. State, 207 S.W.3d 911, 920 (Tex.

App.--Corpus Christi 2006, no pet.). It is within the sole province of the jury to reconcile

conflicts, contradictions, and inconsistencies in the evidence and testimony. Swearingen

v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Bowden v. State, 628 S.W.2d 782,

784 (Tex. Crim. App. 1982). Here, we must presume that the jury resolved any conflicts

in favor of the prosecution, and we must defer to the jury’s determination to disbelieve

Marksberry’s statement to Agent Frausto and instead to believe her trial testimony. See

Turro, 867 S.W.2d at 47.

       Moreover, although a conviction may not be based solely on the uncorroborated


                                               5
testimony of an accomplice, see TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005),

there is sufficient non-accomplice witness testimony here “that tends to connect the

accused with the commission of the crime.” See Malone v. State, 253 S.W.3d 253, 257

(Tex. Crim. App. 2008); Castillo v. State, 221 S.W. 689, 691 (Tex. Crim. App. 2007).

Specifically, Agents Frausto and Nunez testified that Valadez was driving the truck that

contained the hidden contraband, and Agent Frausto testified that Valadez acted in an

“extremely nervous” manner when his truck was stopped at the checkpoint. These are

specific factors that may be considered in determining whether “affirmative links” exist to

connect an accused to possession of contraband. See Hurtado v. State, 881 S.W.2d 738,

743 n.1 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d).

       We conclude that a rational jury could have found beyond a reasonable doubt that

Valadez knowingly or intentionally possessed the marihuana found in his vehicle. See

Sanders, 119 S.W.3d at 820. Moreover, the jury’s verdict is not clearly wrong or manifestly

unjust, nor is it against the great weight and preponderance of the evidence. See Watson,

204 S.W.3d at 414-15. Accordingly, the evidence was legally and factually sufficient to

sustain Valadez’s conviction. His first issue is overruled.

B.     Constitutionality of Sentence

       By his second issue, Valadez argues that his sentence of twenty years’

imprisonment was disproportionate to the seriousness of the offense and in violation of the

Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST .

amends. VIII, XIV. Specifically, Valadez contends that his punishment “was excessive and

clearly should be reserved for more heinous offenders so that such a sanction was

meaningful under concepts of retribution and deterrance.”

       In response, the State argues that Valadez failed to preserve the issue because he

did not object to the sentence or file a motion for new trial with the trial court. We agree.

In order to preserve an issue for our review, a party must make a timely objection, state the


                                             6
specific grounds for the objection, and obtain a ruling in the trial court. TEX . R. APP. P.

33.1(a). Even certain constitutional guarantees are also subject to forfeiture if a proper

objection was not made at trial. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App.

2002). Courts have consistently applied this rule when considering a challenge to a

sentence as unconstitutionally disproportionate. See Noland v. State, 264 S.W.3d 144,

151 (Tex. App.–Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State, 174 S.W.3d 925, 928

(Tex. App.–Corpus Christi 2005, pet. ref’d); see also Vera v. State, No. 13-07-00701-CR,

2009 Tex. App. LEXIS 5015, at *13 (Tex. App.–Corpus Christi May 21, 2009, no pet.)

(mem. op., not designated for publication); Gonzalez v. State, No. 13-08-00504-CR, 2009

Tex. App. LEXIS 1130, at *3-4 (Tex. App.–Corpus Christi Feb. 19, 2009, no pet.) (mem.

op., not designated for publication). Because he failed to specifically object to the allegedly

disproportionate sentence in the trial court, Valadez has waived any error.4 See Noland,

264 S.W.2d at 151; Trevino, 174 S.W.3d at 928. His second issue is overruled.

                                               III. CONCLUSION

         The judgment of the trial court is affirmed.



                                                                        ________________________
                                                                        DORI CONTRERAS GARZA,
                                                                        Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 31st day of August, 2009.




        4
            W e note that the twenty-year sentence im posed by the trial court is well within the statutory lim its
prescribed for first-degree felonies. See id. § 12.32 (Vernon 2003) (“An individual adjudged guilty of a felony
of the first degree shall be punished by im prisonm ent in the institutional division for life or for any term of not
m ore than 99 years or less than 5 years.”), § 12.42(b). Accordingly, the sentence was not illegal. See Mizell
v. State, 119 S.W .3d 804, 806, 806 n.6 (Tex. Crim . App. 2003) (“A sentence outside the m axim um or
m inim um range of punishm ent is unauthorized by law and therefore illegal. . . . Unlike m ost trial errors, which
are forfeited if not tim ely asserted, a party is not required to m ake a contem poraneous objection to the
im position of an illegal sentence.”).

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