Rodriguez v. State
| Decision Date | 14 November 1991 |
| Docket Number | No. A14-90-00253-CR,A14-90-00253-CR |
| Citation | 819 S.W.2d 920 |
| Parties | Johnny RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Paul Licata, Houston, for appellant.
Carol M. Cameron, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and MURPHY and CANNON, JJ.
Appellant entered a plea of not guilty before a jury to the offense of delivery of a controlled substance, namely cocaine. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.03(a) (Vernon Supp.1988), repealed by Acts 1989, 71st Leg. ch. 678, § 13 (effective September 1, 1989). He was convicted and the court assessed punishment at imprisonment for twenty-five years, plus a $10,000.00 fine. Appellant brings three points of error. We affirm.
On the morning of May 25, 1989, a confidential informant contacted Detective Albert Ray Diaz in the Narcotics Division of the Harris County Sheriff's Department. The informant told Diaz about some prospective sellers of cocaine. The informant arranged a meeting with the prospective sellers at the Dairy Queen parking lot on Airline Drive in Houston. Diaz and Detective John Schulte went in Schulte's truck to the Dairy Queen to meet with the informant and the prospective sellers. Schulte had $140,000.00 in "impression money," so he parked his truck in the parking lot across from where the informant introduced Diaz to Jairo Manual Vivanco. Nine or ten other officers were conducting surveillance in unmarked cars. Diaz told Vivanco that he was interested in purchasing eight kilos of cocaine. Vivanco stated that he could get whatever Diaz wanted and he quoted Diaz a price of $17,000.00 per kilo.
Vivanco asked to examine the money before calling his connection. Diaz escorted Vivanco to Schulte's truck where Schulte displayed the money. Vivanco told Diaz that he would meet him later after talking with his connection. Vivanco stated that his connection would also need to see the money. Diaz gave Vivanco his beeper number. Surveillance officers observed Vivanco leave the scene and walk to an apartment complex on Airline, some two to three blocks from the Dairy Queen. They saw Vivanco enter an apartment in that complex.
About 1:00 p.m., Vivanco paged Diaz. Diaz returned the call, at which time Vivanco told him that his connection was coming to the apartment and that they would meet Diaz at the Dairy Queen at 1:30 p.m. About that time, Diaz and Schulte arrived in Schulte's truck, which Schulte parked at the Jack-In-The-Box next to the Dairy Queen. Appellant, Vivanco, and Jimmy Rodriguez were waiting in a blue Cutlass parked at the Dairy Queen. Schulte remained in the truck while Diaz went to speak with Vivanco. Vivanco introduced Rodriguez as the person with the connection. Diaz took Rodriguez to the truck and Schulte showed Rodriguez the money. Rodriguez stated that he was going to immediately call his connection.
At that point, Diaz observed Rodriguez appear to use a nearby pay-telephone. After Rodriguez hung up the telephone, appellant and Vivanco drove over to the telephone. Appellant and Vivanco exited the car and had a discussion with Rodriguez. Rodriguez eventually told Diaz that his connection would not be able to bring the cocaine until 5:00 p.m. When Diaz questioned the wait, appellant told him that "this was a delicate situation and that it shouldn't be rushed." Diaz told Rodriguez to beep him when the cocaine arrived in the area.
Appellant, Vivanco, and Rodriguez left the area in the Cutlass. Surveillance officers observed them return to the same apartment where Vivanco had entered earlier that day. A short time later, surveillance officers observed Garces Arnel Estrada and Overt Alegria, arrive in a red Subaru and enter the same apartment that appellant, Vivanco, and Rodriguez had entered.
Sometime after 5:00 p.m., Vivanco paged Diaz and Diaz returned the call. Vivanco told Diaz to proceed to the area of Airline and West Road where he would page Diaz when the cocaine was received at his apartment. At approximately 5:30 p.m., Vivanco paged Diaz and Diaz returned the call, at which time Vivanco told Diaz that the cocaine had arrived and to meet him at the Dairy Queen. At 6:00 p.m., surveillance officers observed appellant, Vivanco, Rodriguez, Estrada, and Alegria exit the apartment and spend twenty minutes loading clothes into the Subaru and the Cutlass. Appellant, Vivanco, and Rodriguez left in the Cutlass and Estrada and Alegria left in the Subaru. Before leaving the apartment complex, Alegria retrieved a gray duffel bag from a dumpster and placed it in the Subaru.
Diaz and Schulte arrived at the Dairy Queen to find appellant, Vivanco, and Rodriguez waiting in the blue Cutlass. Schulte parked his truck across the parking lot from the Cutlass and Diaz got out to ask Vivanco about where the transfer would take place. Vivanco told Diaz that his people were looking for a location. Vivanco then asked Diaz if he brought the money. When Diaz answered affirmatively, Vivanco insisted on seeing it again. Diaz obliged him. Vivanco asked Diaz if Diaz and Schulte would follow the Cutlass to the location of the transfer. Vivanco also asked Diaz if he could ride in the truck but Diaz refused after noticing that Vivanco was armed. Schulte and Diaz followed the Cutlass to the parking lot of an apartment complex located at Denmar and Imperial Valley in Harris County. Shortly after the Cutlass arrived, surveillance officers also observed the red Subaru in the area. They observed Alegria exit the Subaru and walk in and around the complex. After fifteen minutes, the Subaru came by and picked up Alegria and then proceeded back to the apartment complex on Airline.
Schulte dropped Diaz off near the parked Cutlass and parked the truck some twenty yards away. Diaz asked Vivanco about the drugs and Vivanco directed him to the back seat where appellant was sitting. Diaz remained outside the car as appellant picked up and displayed what appeared to be "several block-like objects wrapped in gray duct tape." Based upon his experience and observation of the wrapping, Diaz opined that the cocaine had been diluted. When Diaz asked to cut into the packages to check their contents, Vivanco responded that that was unnecessary and pulled from his pants pocket a clear zip-lock bag containing approximately three to four grams of cocaine. When Diaz again insisted on inspecting the quality of the cocaine in the packages, Vivanco told Diaz that he would call him later and ordered Rodriguez to drive away. Surveillance officers observed the Cutlass proceed to the apartment complex on Airline.
Around 10:00 p.m., Vivanco paged Diaz and Diaz returned the call once again. Vivanco asked Diaz whether he still wanted to make the deal. Diaz expressed his concern that Vivanco was trying to rob him. Vivanco assured him otherwise, explaining that he did not like the area where they met earlier. Vivanco agreed to page Diaz at 11:00 a.m. the next morning to set up another meeting. Vivanco did so and Diaz returned the call. Vivanco stated that he was ready to complete the transaction and wanted to meet Diaz at the Dairy Queen. Diaz demanded not only that they meet at a nearby Safeway parking lot but that he also be able to cut into the packages.
On the morning of May 26, 1989, surveillance officers observed appellant, Vivanco, Rodriguez, Estrada, and Alegria exit the apartment on Airline. Appellant was carrying a gray duffel bag similar to the bag seen the day before. Appellant, Vivanco, and Rodriguez drove off in the Cutlass and Estrada and Alegria drove off in the Subaru. At approximately 11:30 a.m., Diaz parked his black LeBaron directly in front of the Safeway store. Schulte parked his truck twenty-five yards away. The Cutlass pulled up next to Diaz's car. Estrada parked the Subaru in a strip shopping center a couple hundred yards away from the Safeway. Estrada and Alegria exited the Subaru, opened the trunk, and changed shirts. They got back in the Subaru and drove to the Safeway parking lot and parked five aisles away from Diaz's car. Estrada and Alegria exited the Subaru. Estrada walked toward Schulte's truck and Alegria walked toward the Safeway store. Schulte moved his truck as Estrada approached.
Diaz approached the passenger side of the Cutlass. Rodriguez was standing outside the car on the driver's side and Vivanco and appellant were sitting in the car on the passenger side. Diaz asked Vivanco if he had the merchandise. Vivanco stated that Rodriguez wanted to see the money first. Diaz insisted on inspecting the merchandise. Appellant then gave the gray duffel bag to Vivanco, who pulled out three packages. Diaz noticed that the packages appeared different from the packages displayed the previous day. Vivanco gave a package to Diaz, who unsuccessfully tried to cut into it. Diaz gave the package back to Vivanco, who cut it open along with the two other packages. Diaz tested the samples. Satisfied that it was cocaine, Diaz told Vivanco that he was going to Schulte's truck to get the money. As he walked toward the truck, Diaz gave the bust signal. He and Schulte then drove away in the truck.
In his first point of error, appellant attacks the sufficiency of the evidence to support his conviction.
In reviewing the sufficiency of the evidence, the test is whether, after viewing the evidence 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The standard of review is the same for both direct and circumstantial evidence. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App 1983) (opin. on reh'g).
In applying that standard of review to circumstantial evidence cases, "the exclusion of reasonable hypothesis' test" is used. Ransom v. State, 789 S.W.2d...
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