Cano v. State

• Decision Date: 31 August 1999
• Parties: (Tex.App.-Corpus Christi 1999) MARIA CONSUELO CANO, Appellant, v. THE STATE OF TEXAS, Appellee. ROBERT SANDOVAL SILVA, Appellant, v. THE STATE OF TEXAS, Appellee. NUMBER 13-97-859-CR NUMBER 13-97-862-CR
• Court: Texas Court of Appeals

Page 99

3 S.W.3d 99 (Tex.App.-Corpus Christi 1999)

MARIA CONSUELO CANO,Appellant, v. THE STATE OF TEXAS,Appellee.

ROBERT SANDOVAL SILVA,Appellant, v. THE STATE OF TEXAS,Appellee.

NUMBER 13-97-859-CR

NUMBER 13-97-862-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

August 31,1999.

On appeal from the 156th District Court of Bee County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Dorsey, Chavez, and Rodriguez

OP I N I O N

Opinion by Justice Dorsey

Robert Silva and Maria Cano, common-law husband and wife, jointly appeal their convictions for delivery of a controlled substance. After a Bee County jury convicted them, the court sentenced Robert to ten years incarceration and Maria to eight years probation. They appeal these convictions by ten points of error.

The Trial

Cano and Silva were convicted of delivering more than one but less than four grams of cocaine to a confidential police informant. The State's version of the facts is that a confidential informant already employed by the State approached them with the prospect of setting up a drug buy from Robert Silva. The informant said Silva offered to sell her cocaine on another occasion. The State's detectives gave money to the informant, placed a wire transmitter on her, and sent her to the residence of Silva and Cano to make the buy. The detectives followed her and listened on the transmitter, but the tape they made from this was very poor. The informant said that first a man came to the door, then Maria. She spoke with Maria regarding purchasing $170.00 worth of cocaine and said she wanted to speak with Robert. The testimony is vague, but Maria made some effort to sell her the drugs or at least refer the informant to Robert so he could sell her the cocaine. After the informant requested to speak to Robert, he came to the door and sold her nine "papers" of cocaine.

The trial was sharply contested. The State presented testimony from two detectives and the confidential informant who planned and executed the drug buy. All testified that they were a part of the drug buy at the Silva/Cano residence and that the informant went to the door and spoke first with Maria Cano, who offered to sell her drugs, and then with Robert Silva, who did sell her nine "papers" of cocaine. The State's witnesses identified the Cano/Silva residence, the cocaine involved in the transaction, and Cano and Silva themselves.

While the detectives could not see the actual exchange of hands during the drug buy, they were parked nearby and could see the back of the informant during most of the transaction. They listened in their car through a wire transmitter to the entire transaction, although the resulting tape recording was of very poor quality. The detectives met with the informant before the buy, prepared her for the buy, followed her to the house, watched part of the transaction which took place at the front door of the residence, listened to it, and followed her from the residence to the nearby dog pound where they all got out of their vehicles and met regarding the buy. At this meeting, the informant turned over the cocaine to the detectives. The detectives also testified that during that meeting, they saw Robert Silva drive by and appear to recognize what was going on.

Appellants both testified that they had never seen the informant before and that they were not home when the alleged drug buy took place. Instead, they claimed they were at Robert's sister's house that day from approximately 10:00 a.m. until 10:00 p.m. at a belated New Year's celebration. Robert testified that he left the party a couple of times to attend physical therapy sessions for a knee injury. Robert's sister and another family friend corroborated the couple's alibi. Doris Wren, a long-time friend of Maria's, also testified on behalf of the couple.

None of the witnesses in this case were pristine. The officers' testimony conflicted with the informant's, the informant's conflicted with her own, Robert's was inconsistent, and Robert's sister made a blunder that likely seriously undermined her credibility. The informant was an especially suspect witness, and her testimony even "went both ways" on whether or not Maria actually offered to sell her drugs. Doris Wren did not know anything particularly relevant. The fundamental question for the jury was whether they believed the alibi.

Legal Sufficiency of the Evidence Convicting Cano

By appellants' first two points of error, they contend that the evidence was legally insufficient to support Maria Cano's conviction for delivery of more than one gram of a controlled substance. First, Cano complains that the evidence was insufficient to convict her as charged of "actual" delivery of a controlled substance. She argues that the evidence was insufficient to show either that she had direct or indirect control of the contraband prior to its delivery or that it was delivered by her husband at her instance or direction. However, she misconstrues the elements required to prove that she was a party to the actual delivery of a controlled substance by Robert. To show Maria guilty as a party, the State need only prove that she aided or attempted to aid Robert's delivery of the substance.

The evidence in criminal cases is legally sufficient if, after viewing it in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789; 61 L.Ed.2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Barrera v. State, 978 S.W.2d 665, 670-71 (Tex.App.-Corpus Christi 1998, no pet.). The jury, as the trier of fact, is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). The jury is free to accept or reject all or any part of the evidence presented by either party. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Little v. State, 853 S.W.2d 179, 183 (Tex. App.-Corpus Christi 1993, no pet.) Reconciliation of evidentiary conflicts is left exclusively to the jury, who may draw reasonable inferences and make reasonable deductions therefrom. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App.1982); Benavides v. Texas, 763 S.W.2d 587, 588-89 (Tex. App.-Corpus Christi 1988, pet. ref'd). The appellate court is not free to disregard, realign, or weigh the evidence, but must consider all the evidence, whether rightly or wrongly admitted. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, an appellate court may not reverse the conviction due to legal insufficiency of the evidence. See Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

Sufficiency of the evidence is measured by the elements of the offense as defined by the "hypothetically correct jury charge for the case." See Malik v. State, 953 S.W.2d 234, 340 (Tex. Crim. App. 1997). The charge correctly set forth the law as it applied to the facts in this case with regard to Maria:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 4th day of January, A.D., 1996, . . . the defendant MARIA CONSUELA CANO, did then and there, with intent to promote or assist the commission of said offense, aided or attempted to aid . . . Robert Sandoval Silva in the commission of said offense . . . by offering to deliver cocaine to [the confidential informant] for ROBERT SANDOVAL SILVA and by making his presence available so that the said ROBERT SANDOVAL SILVA could make the sale, then you will find the defendant guilty as charged.

Also, the jury was properly instructed on how the law of parties applies in this case to the elements of "delivery" and "intent":

Our law provides that a person commits an offense if she intentionally or knowingly delivers a controlled substance. Cocaine is a controlled substance.

. . .

By the term "deliver," as used in this charge is meant that actual transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

. . .

All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by her own conduct or another for which she is criminally responsible.

A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

Each party to an offense may be charged with commission of the offense.

The "delivery" element in a delivery of a controlled substance case may be proven under three different theories: actual transfer, constructive transfer, and "offer-to-sell." See Conaway v. State, 738 S.W.2d 692, 694 (Tex. Crim. App. 1987); Jimenez v. State, 776 S.W.2d 746, 749 (Tex. App.--Corpus Christi 1989, pet refd.). Actual delivery occurs when real possession and control of the substance is transferred from one person to another. See id. "Constructive delivery" occurs when a seller transfers a controlled substance either belonging to him or under his control by some other person or means at the direction of the seller. See id. Delivery by "offer-to-sell" is accomplished by the representation, by word or deed, that the person has a controlled substance to sell. See id.

The State may plead all three forms of delivery in the indictment. See State v. Garrett, 798 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1990), affirmed, 824 S.W.2d 181 (Tex....