Gutierrez v. State

• Decision Date: 03 October 2001
• Docket Number: No. 07-99-0212-CR.,07-99-0212-CR.
• Citation: Gutierrez v. State, 71 S.W.3d 372 (Tex. App. 2001)
• Parties: David M. GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

71 S.W.3d 372

David M. GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 07-99-0212-CR.

Court of Appeals of Texas, Amarillo.

October 3, 2001.

David T. Duncan, Travis S. Ware, Lubbock, for appellant.

Lubbock County District Attorney's Office William C. Sowder and Wade Jackson, Lubbock, for appellee.

Before QUINN and REAVIS and JOHNSON, JJ.

JOHNSON, Justice.

Appellant David M. Gutierrez appeals from his conviction for delivery of cocaine by constructive transfer. We affirm.

BACKGROUND

Department of Public Safety officer Gilbert Arredondo, as part of a "buy-bust" drug operation, arranged with David Singleterry for Arredondo to purchase one-half of a kilogram of cocaine. Singleterry met with Arredondo at Singleterry's home and had Arredondo show $11,500 in cash which was the agreed-upon purchase price for the cocaine. Then Singleterry had Arredondo drive both of them to an apartment where Singleterry was to obtain the cocaine. Singleterry went into the apartment alone and returned with a sample of white powder. Arredondo then gave Singleterry the $11,500 cash purchase price and Singleterry went back into the apartment while Arredondo waited in the car. Singleterry emerged from the apartment, showed a bag which he indicated contained the cocaine and went around to enter the passenger side of the car. Arredondo signaled the other members of the buy-bust team to move in. Singleterry was arrested before he actually gave the bag containing cocaine to Arredondo.

Arredondo and other officers entered the apartment which Singleterry had been going in and out of. In the apartment were a young female named Virginia Lomas to whom the apartment was leased, her young daughter, two male children from neighboring apartments, and appellant. Appellant was located by himself in a bathroom connected to the master bedroom of the apartment. When he was located, appellant was on the floor of the bathroom close to the toilet. Officers found white powder on the seat of the toilet and around the base of the toilet. Ten thousand dollars of the money which had been given to Singleterry by Arredondo to purchase the cocaine was located scattered on the bed, the floor and behind a safe in the closet in the bedroom connected to the bathroom. Drug paraphernalia was also found in the bedroom. Singleterry had the remaining $1,500 of the cash given him by Arredondo.

The sample of white powder first brought out of the apartment by Singleterry, the material in the bag next brought out by Singleterry, and the white powder found on and around the toilet next to which appellant was found by the officers all turned out to be cocaine. Appellant was indicted for

... intentionally and knowingly deliver[ing] to GILBERT ARREDONDO a controlled substance listed in penalty group one, namely cocaine, by aggregate weight, including adulterants and dilutants, at least four hundred (400) grams or more, by actually and constructively transferring said controlled substance....

At trial the State elected to proceed on the constructive transfer charge. The jury was charged on delivery by constructive transfer and on possession with intent to deliver, as a lesser-included crime. The jury found appellant guilty of constructive transfer. Punishment was assessed at 55 years in the Institutional Division of the Texas Department of Corrections.

Appellant challenges his conviction via six issues. His first three issues challenge the sufficiency of the evidence. Issue four asserts that oral statements about the location of some of the buy money made during a custodial interrogation after his arrest were not voluntary and should have been suppressed. His fifth issue seeks remand for the entry of findings of fact and conclusions of law by the trial court in regard to the voluntariness of the custodial statement about location of part of the buy money. Issue six asserts that the trial court erroneously charged the jury that appellant could be convicted of possession with intent to deliver the cocaine as a lesser-but-included offense. We will address the issues in the order presented.

ISSUES 1, 2 and 3: INSUFFICIENCY OF THE EVIDENCE

By his first three issues, appellant contends that the evidence was insufficient to sustain his conviction for delivery of a controlled substance because (1) the State failed to show that a delivery of a controlled substance occurred; (2) the State failed to show any link between appellant and the controlled substance recovered; and (3) the State failed to show appellant had any knowledge of an ultimate transferee for the controlled substance. Although he does not specify whether he challenges the legal or factual sufficiency, appellant's brief cites cases addressing both legal and factual sufficiency. Therefore, we will construe appellant's complaint as both a legal and factual insufficiency challenge.

When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Clewis, 922 S.W.2d at 133; Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App.1991). All of the evidence is reviewed, but evidence that does not support the conviction is disregarded. See, e.g., Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). If the legal sufficiency challenge is sustained, then a judgment of acquittal must be rendered. Clewis, 922 S.W.2d at 133.

If the evidence is legally sufficient to support the verdict, we proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. In our review, we evaluate all the evidence without employing the prism of "in the light most favorable to the prosecution." Id. at 129. We consider all of the evidence, comparing evidence that tends to prove the existence of disputed facts with evidence that tends to disprove such facts. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We should set aside the verdict only when the factual finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135. In doing so, we must be mindful that the jury is the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164.

Constructive delivery has been defined as a transfer of a controlled substance, either belonging to the accused or under his control, by some other person or agency, at the instance and direction of the accused. Thomas v. State, 832 S.W.2d 47, 51 (Tex.Crim.App.1992); Roberts v. State, 866 S.W.2d 773, 778 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). In order to prove that appellant delivered the cocaine by constructive transfer, the State must prove that: (1) prior to the alleged delivery, the transferor had either direct or indirect control of the controlled substance; and (2) the transferor knew of the existence of the transferee. See Daniels v. State, 754 S.W.2d 214, 221-22 (Tex.Crim. App.1988). As to the second element, prior to the delivery, the transferor must be aware of the existence of the ultimate transferee to the extent that he contemplated that his initial transfer would not be the final transaction in the chain of distribution. See Daniels, 754 S.W.2d at 221; Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Crim.App.1979).

When the accused is not in exclusive possession of the place where the contraband was found, the accused's knowledge of or control over the contraband must be proved by independent facts and circumstances that affirmatively link appellant to the contraband. See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). The facts and circumstances must create a reasonable inference that the accused knew of the controlled substance's existence and that the accused exercised control over it. See Dickey v. State, 693 S.W.2d 386, 389 (Tex.Crim.App.1984). One independent fact indicating appellant's knowledge and control of the contraband is location of the contraband in close proximity to the accused such that it is readily accessible to him. See Abdel-Sater v. State, 852 S.W.2d 671, 676 (Tex.App.— Houston [14th Dist.] 1993, pet. ref'd). Another independent fact is if the amount of contraband found is large enough to indicate that the accused knew of its presence. See Hill v. State, 755 S.W.2d 197, 201 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). All the facts need not point directly or indirectly to the defendant's guilt; the evidence is sufficient if the combined and cumulative effect of all the incriminating circumstances point to the defendant's guilt. See Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983).

The evidence showed that Singleterry historically obtained cocaine from a third party supplier when Arredondo made purchases from him. Arredondo testified that on September 14th, Singleterry did not have a large quantity of cocaine before he went into apartment 127. Singleterry went into the apartment and returned with a drug sample for Arredondo. After receiving $11,500 in cash from Arredondo, Singleterry returned to the apartment and came back out with what turned out to be over 470 grams of cocaine including adulterants and dilutants, and, as it turned out, without $10,000 of the buy money. Inside the apartment, officers found white powder containing a razor blade, as well as a set of digital scales in the master bedroom adjoining the bathroom where appellant was found. Appellant was found face down near a toilet that had cocaine on the toilet seat and on the floor around the toilet. Arredondo testified that in his...