Rodriguez v. State

• Court: Texas Court of Appeals
• Writing for the Court: AMIDEI
• Citation: Rodriguez v. State, 970 S.W.2d 66 (Tex. App. 1998)
• Decision Date: 07 May 1998
• Docket Number: No. 14-96-00417-CR,14-96-00417-CR
• Parties: Emil Mosquera RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)

Page 66

970 S.W.2d 66

Emil Mosquera RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 14-96-00417-CR.

Court of Appeals of Texas Houston (14th Dist.).

May 7, 1998.

Discretionary Review Refused Sept. 16, 1998.

Lott J. Brooks, III, Houston, for appellant.

Dan McCrory, Houston, for appellee.

Before YATES, AMIDEI and FOWLER, JJ.

OPINION

AMIDEI, Justice.

Emil Mosquera Rodriguez appeals his conviction by a jury of delivery of at least 400 grams of cocaine. TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (Vernon 1992 & Supp.1998). The trial court assessed his punishment at 40 years imprisonment and a $5,000.00 fine. In eight points of error, appellant contends the evidence was legally and factually insufficient to support his conviction because: (1) and (2), the State failed to prove the cocaine weighed at least 400 grams; (3), (4), (5), and (6), the record shows no actual or constructive transfer of the cocaine; and, (7) and (8), the State did not prove that appellant acted as a principal or a party to the offer of sale of the cocaine. We affirm.

In March 1995, undercover officer Donald DeBlanc (DeBlanc) negotiated a purchase of two kilograms of cocaine from Greg Chaney for $38,000.00. On April 1, 1995, DeBlanc went to a residence on Jewel Street, where he met Chaney to close the deal. Chaney escorted DeBlanc inside and a second man, Gamboa, told DeBlanc the cocaine was in the kitchen. DeBlanc followed Gamboa and Chaney into the kitchen where he saw appellant standing guard over the cocaine, which was covered with a jacket. Appellant then told DeBlanc, "Yeah, man, it's under the jacket." DeBlanc raised the jacket, and observed a shoe box. Appellant then told DeBlanc, "It's in the shoe box, man." DeBlanc opened the shoe box and observed two packages of cocaine. After DeBlanc cut into one of the cocaine packages and examined it, he told appellant he was going to get the money and would "be right back." Appellant and the two other suspects appeared surprised that DeBlanc did not have the money with him. DeBlanc walked towards the door and Chaney told DeBlanc he could not leave, and to call the person with the money and have it brought to the house. DeBlanc called Officer Ong on his cell phone and told him to bring the money. DeBlanc told the suspects the "money's on the way." Shortly thereafter, other officers arrived and appellant ran into the garage. The officers found appellant hiding behind a door in the garage, where they arrested him.

In eights points of error, appellant claims the evidence is legally and factually insufficient to prove he delivered at least 400 grams of cocaine. In reviewing the legal sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). In reviewing the sufficiency of the evidence in the light most favorable to the verdict or judgment, the appellate court is to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). This standard is applied to both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). The jury is the exclusive judge of the facts, credibility of the witnesses, and the weight to be given to the evidence. Chambers v. State, 805 S.W.2d 459, 462 (Tex.Crim.App.1991). In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In making this determination, the jury can infer knowledge and intent from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982).

Under Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996), a court of appeals reviews the factual sufficiency of the evidence when properly raised after a determination that the evidence is legally sufficient. Id. In conducting a factual sufficiency review, the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In conducting a factual sufficiency review, the court of appeals reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination. This review, however, must be appropriately deferential so as to avoid an appellate court's substituting its judgment for that of the jury. If the court of appeals reverses on factual sufficiency grounds, it must detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient. The appropriate remedy on reversal is a remand for a new trial. Id.

A factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). This court's evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Id. The appellate court maintains this deference to the fact findings, by finding fault only when "the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." Id.

In points of error one and two, appellant contends the State failed to prove the cocaine weighed at least 400 grams. The State's chemist testified that one package of cocaine weighed 1121 grams, and the other weighed 1126 grams, including the wrappers. The chemist testified that both packages contained a controlled substance weighing more than 400 grams. Appellant contends the chemist failed to prove the weight of the wrappers; therefore, there is no evidence that the cocaine, alone, weighed at least 400 grams. Appellant argues the chemist's testimony that both packages contained a controlled substance weighing more than 400 grams, was a "meaningless" conclusion. We disagree.

In addition to the chemist's testimony that the combined weight of the controlled substance was more than 400 grams, DeBlanc testified that the suspects offered to sell him two kilograms of cocaine, and Chaney testified that "the drug bust had two kilos." The State proved appellant delivered at least 400 grams. Short v. State, 874 S.W.2d 666, 668 (Tex.Crim.App.1994). Although appellant cross-examined the chemist as to chain of custody, he did not question the "conclusion" of the chemist as to the quantity of cocaine by cross-examination, defense testimony, objection or otherwise. See Id. Viewing this evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under Clewis, we further conclude the jury's finding appellant guilty of delivery of at least 400 grams of cocaine is not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 133. Appellant's points of error one and two are overruled.

In points of error three, four, five, six, seven, and eight, appellant contends the evidence is legally and factually insufficient to support his conviction for delivery of cocaine in that the evidence is insufficient to show an actual or constructive transfer to DeBlanc occurred, or that he acted as a party to the offer to sell to DeBlanc.

The indictment charged appellant with all three manners of delivery: (1) actual transfer to DeBlanc; (2) constructive transfer to DeBlanc; and (3) an offer to sell to DeBlanc. The State may plead all three forms of delivery and it may not be forced to elect a particular method on which to prosecute. State v. Garrett, 798 S.W.2d 311, 314 (Tex.App.--Houston [1st Dist.] 1990), affirmed, 824 S.W.2d 181 (Tex.Crim.App.1992). Each of the methods may be submitted alternatively...