Harrell v. State

• Decision Date: 17 May 1991
• Docket Number: No. 12-89-00035-CR,12-89-00035-CR
• Citation: 885 S.W.2d 427
• Parties: Wesley HARRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 427

885 S.W.2d 427

Wesley HARRELL, Appellant, v. The STATE of Texas, Appellee.

No. 12-89-00035-CR.

Court of Appeals of Texas,

Tyler.

May 17, 1991.

Discretionary Review Overruled June 13, 1991.

Odis R. Hill, Longview, for appellant.

C. Patrice Savage, Longview, for appellee.

BILL BASS, Justice.

Wesley Harrell was convicted of engaging in organized criminal activity. A jury assessed his punishment at fifteen years confinement. We reverse and remand for a new trial.

Harrell was indicted with thirty-two others, the indictment alleging that Harrell participated in a conspiracy to deliver cocaine. The indictment grew out of an extensive investigation of cocaine trafficking in Gregg County. The investigation focused on the activities of John and Judy Lindley, who were among the thirty-two people indicted. The investigating authorities kept the Lindleys' apartment under surveillance and tapped the apartment telephone. The police searched the Lindleys' apartment pursuant to a warrant recovering three pounds of cocaine, drug paraphernalia and weapons. The officers also searched a car leased by the Lindleys, but not described in the warrant. The search of the Lindley automobile produced notebooks detailing numerous drug transactions. During a search of a separate town house at which the Lindleys had been observed, the officers seized another ledger detailing cocaine transactions.

Appellant, by his first three points of error, contends that the evidence is insufficient to support his conviction.

Appellant was charged with violating TEX.PENAL CODE § 71.02(a)(5), which reads as follows:

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:

....

(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug....

The pertinent definitions are contained in TEX.PENAL CODE § 71.01, ¹ which at the time the indictment was returned, read as follows:

(a) A "combination" means five or more persons who collaborate in carrying on criminal activities, although:

(1) participants may not know each other's identity;

(2) membership in the combination may change from time to time; and

(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.

The indictment of appellant alleged that on or about September 3, 1986, and continuing until on or about September 12, 1986, appellant and thirty-two others did then and there with the intent to establish, maintain and participate in a combination and in the profits of a combination, knowingly and intentionally conspire to commit the offense of unlawful delivery of cocaine and agreed among themselves and with each other to engage in this offense and in pursuance of such agreement and in furtherance of it the said defendants performed overt acts.

The overt acts alleged against appellant are as follows:

(20) communicated with John Lindley by telephone on or about September 5th, 1986;

(21) communicated with John Lindley by telephone on or about September 11th, 1986;

(22) made a payment to John Lindley for cocaine on or about September 10th, 1986.

The standard of review for both direct and circumstantial evidence is whether any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. In making this determination, the reviewing court must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Marroquin v. State, 746 S.W.2d 747 (Tex.Cr.App.1988).

Appellant concedes that, viewed in the light most favorable to the State, the evidence shows a combination of five or more persons collaborating to deliver cocaine. However, appellant contends that the evidence is insufficient to permit the inference that he knew that the purpose of the combination was the delivery of cocaine, as opposed to its mere use or possession. In appellant's view, the evidence does not permit the inference that he knew five people in the combination were using cocaine, let alone delivering it. He argues that there is insufficient proof that he conspired to commit the delivery of cocaine, with the specific intent of participating in a criminal group of at least five persons. Citing Barber v. State, 764 S.W.2d 232, 236 (Tex.Cr.App.1988).

To establish defendant's guilt "of the offense of organized criminal activity, an actor must commit or conspire to commit one or more of the enumerated crimes, with the specific intent of participating in a criminal group of at least five persons." Id. at 235. The State must prove that it was the accused's intent to participate in a combination of more than four persons, and that he or she also possessed the intent to participate in the profits of the combination. Richardson v. State, 763 S.W.2d 594, 596 (Tex.App.--Corpus Christi 1988, no pet.). Thus, in order to prove intent, the State must show that the accused knew of the criminal activity of the group. Id.; Nickerson v. State, 686 S.W.2d 294, 297 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd). Direct evidence is rarely available to prove a conspiracy necessarily hatched in secrecy. Almost inevitably, circumstantial evidence, including the conspirator's conduct, must be relied upon to prove the essential elements of the crime. Farrington v. State, 489 S.W.2d 607 (Tex.Cr.App.1972). Similar methods of operation, together with joint activities and relationships, support the finding of a single conspiracy. United States v. Ochoa, 609 F.2d 198 (5th Cir.1980); Kennard v. State, 649 S.W.2d 752, 764 (Tex.App.--Fort Worth 1983, pet. ref'd).

The appellant concedes that, viewed in the light most favorable to the State, the evidence shows that John and Judy Lindley were the hub of an extensive cocaine distribution system in Longview. They served as suppliers of cocaine to a network of smaller dealers including the appellant. Often the cocaine was advanced or "fronted" to the retail dealer on credit, and when the cocaine was resold, the Lindleys received payment within a matter of hours. The detailed business records of the enterprise, the surveillance, and wiretaps demonstrate that far more than five persons were included within the combination. At least several of the confederates were on familiar terms and shared their plans and mutual concerns, not only with the Lindleys, but with one another.

There is direct evidence that appellant had some contact with at least three members of the combination other than the Lindleys. Mike Gibbons answered the telephone twice when appellant called the Lindleys. In the first call appellant identified himself by his nickname of Junior; in the second call he told Gibbons "this is Wes." Gibbons and appellant were not strangers to one another. Surveillance reports and wiretap evidence showed that appellant was at the Lindley apartment on more than one occasion while John LaRoux, another of the confederates, was also there. On one of these occasions, appellant and LaRoux carried on a brief conversation on the sidewalk just outside the Lindley apartment. When LaRoux left, appellant walked back to the parking lot and spoke to someone who had just pulled up in a Lincoln Continental. The driver handed appellant something small enough to be concealed in the hand. Appellant then entered the Lindley apartment. Shortly thereafter, appellant answered the door to the Lindley apartment when Billy Mabry, another member of the combination arrived with his wife.

Judy Lindley ordinarily devoted a separate section of her records to each of the dealer's drug transactions and labeled it with the dealer's name. No section bore appellant's name. However, one of the entries in an unlabelled section recorded a transaction that occurred during a time when surveillance showed that, other than the Lindleys, appellant was the only person in the Lindley apartment who did not have a named section in the records. State's exhibit 41 is a summary, in Judy Lindley's handwriting, of the amounts the various dealers owed the Lindleys. "Wes" is shown as owing $800, but an attempt was made to scratch out the name and amount. The amount due to from "Wes" corresponds to the $800 balance due in the unnamed section. The wife of one of the conspirators testified that Judy Lindley told her that appellant had objected to his name appearing in the records.

A scratched out entry in a separate note in John Lindley's handwriting dated September 11 at 3:00 p.m. shows that "Jr." (appellant's nickname) was to be fronted (advanced on credit) eight ounces of cocaine for $9,600. Another John Lindley note records an $800 cash transaction with "Jr." at 6:15, September 11. Surveillance confirmed that appellant was with the Lindleys at both of the times shown on the notes.

There is strong circumstantial evidence that the unmarked section of the Lindley drug records belonged to appellant. That section recorded total purchases of 1484 grams of cocaine for $74,200 during the 114-day period ending September 10, 1986. Like the other dealers, appellant was advanced much of the cocaine on credit.

Considering all of the evidence, we conclude that there is sufficient proof to support the jury's implied findings that appellant had the specific intent to participate in a criminal combination of at least five persons, and that appellant knew its purpose was the sale of cocaine. Upon the evidence in the record, a rational trier of fact could find all of the elements of the offense beyond a reasonable doubt. Appellant's first three points of error are...