Rodriquez v. State, s. 53400

• Decision Date: 08 June 1977
• Docket Number: 53401,Nos. 53400,s. 53400
• Parties: Vito Alecio RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 451

552 S.W.2d 451

Vito Alecio RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 53400, 53401.

Court of Criminal Appeals of Texas.

June 8, 1977.

Rehearing Denied July 6, 1977.

Daniel V. Alfaro, Albert R. Huerta and Juan P. Gonzalez, Corpus Christi, for appellant.

Oscar McInnis, Dist. Atty., Tom Beery, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

These appeals are from an order revoking probation and from a conviction for the possession of heroin.

On December 11, 1973, after waiving a jury trial, the appellant entered a plea of guilty to the offense of possession of marihuana; the punishment was imprisonment for 5 years and a fine of $2,000. The imposition of sentence was suspended, and the appellant was granted probation. The State's motion to revoke probation alleged that the appellant possessed and delivered heroin to an undercover agent on August 14, 1975, in violation of the condition of probation that he would commit no offense against the laws of this state. The motion to revoke appellant's probation was heard by the trial court, and the appellant's trial for possessing and delivering heroin was heard by the jury, at the same time.

After hearing the evidence the court revoked the appellant's probation and pronounced sentence. After it found the appellant guilty of possessing heroin, the jury assessed punishment of imprisonment for 13 years and a fine of $4,500. When the court sentenced the appellant, the punishment assessed for the possession of heroin was cumulated with the punishment assessed for possession of marihuana.

The appellant urges that: (1) the evidence is not sufficient to sustain either the conviction for possession of heroin or the order revoking probation; (2) hearsay evidence purportedly admitted under the co-conspirator exception to the hearsay rule was erroneously admitted; (3) the trial court erred in not granting a motion for mistrial after a prosecutor, in the presence of the jury, called defense counsel a liar; (4) a prosecutor's improper argument required reversal of the judgment; (5) the trial court's threat to hold the appellant's counsel in contempt resulted in depriving the appellant of a fair trial and in depriving the appellant of effective assistance of counsel; (6) his counsel was erroneously denied the right to cross-examine co-defendants about the disposition of their cases; (7) the trial court erred in cumulating the punishment for possession of heroin and the punishment for possession of marihuana; and (8) the trial court erred in not specifying its reasons for revoking the appellant's probation.

We first discuss the sufficiency of the evidence. A Department of Public Safety undercover agent, Robert Fullerton, discussed with Jose Manuel Guerro the purchase of a quantity of heroin. Later Fullerton and fellow undercover agent Tom Jones met Guerro and Marguireto Garza Almaguer; Almaguer showed the undercover agents a sample of heroin and quoted them a sale price for the heroin of $1,350 per ounce. The next day, with Officer Chris Trevino hidden in the trunk of their car, the undercover agents picked up Guerro and Almaguer. The undercover agents showed Almaguer $50,000 in cash, and they told him they were prepared to close the deal for thirty-six ounces of heroin. Jones then placed the money in the trunk of the agent's car where Trevino was hidden. Fullerton stayed with Guerro and Guerro's companion, David Davilla; Jones, in the agent's car, accompanied by Almaguer, drove into the country to accept delivery of the heroin. After driving back and forth on the highway, Jones, directed by Almaguer, parked the car near a vacant trailer house. Then a Mercury automobile and a Plymouth automobile stopped on the road about one hundred yards from Jones' car. The driver of the Plymouth, Almador Ayla, entered the Mercury, which was driven by the appellant, and they drove to and parked behind Jones' car. The appellant asked Almaguer if "everything was ready." Almaguer told the appellant everything was ready and that the money was in the trunk of Jones' car. The appellant took Ayla back to the Plymouth, and they returned with both automobiles which they parked near Jones' car. Ayla got out of the Plymouth, and as he started to walk toward Jones' car the appellant told Ayla to "get the stuff." Ayla opened the trunk of the Plymouth, and, carrying a paper bag, he again started to walk toward Jones' car. Jones opened the trunk of his car; Trevino sprang out of the trunk; and Jones and Trevino placed Ayla, Guerro and the appellant under arrest for possession and delivery of heroin. Ayla dropped the paper bag in which there were thirty-six smaller bags. These bags were seized by Jones and Trevino; when the contents of these bags were analyzed by a chemist they were found to contain thirty-two ounces of thirty-two percent pure heroin.

The appellant denied that he had any knowledge of the purchase and sale of the heroin; he testified that he had driven to the scene at Ayla's request to pick up Ayla after Ayla had left his car at that place. The court, as the trier of the facts on the motion for revocation of probation, found beyond a reasonable doubt that the appellant possessed and delivered heroin; the court then revoked appellant's probation. The jury resolved conflicts in the evidence and found the appellant guilty of possession of heroin. The evidence is sufficient to support the jury's verdict of guilty and the court's order revoking probation.

The appellant most strenuously argues that the trial court erred in admitting the testimony of the undercover agents concerning their negotiations for the purchase of the heroin. The appellant was not present when the officers had these conversations with Guerro and Almaguer. The appellant asserts that this hearsay evidence was not properly admitted under the co-conspirator exception to the hearsay rule, because the State failed to prove that the appellant was a co-conspirator and failed to show the appellant aided in the furtherance of the conspiracy before the hearsay testimony was admitted.

The co-conspirator exception to the hearsay rule is not limited to prosecutions for a conspiracy, but it is a rule of evidence applicable to the prosecution of any offense in which co-conspirators participate. E. g. Phelps v. State, 462 S.W.2d 310 (Tex.Cr.App.1970); United States v. Mendoza, 473 F.2d 692 (5th Cir. 1972).

Proof of a defendant's participation in and the existence of the conspiracy need not be made before the hearsay statements of a co-conspirator are admitted. In other words, the order of proof is not material. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974); United States v. Martinez, 481 F.2d 214 (5th Cir. 1973). Even though the appellant may not have joined the conspiracy until after the conversations about which he complains occurred, the conversations were in furtherance of the conspiracy, and they were admissible. Smith v. State, 21 Tex.App. 96, 17 S.W. 560 (1886); West v. State, 134 Tex.Cr.R. 565, 116 S.W.2d 726 (1938); Drakes v. State, 505 S.W.2d 892 (Tex.Cr.App.1974).

We need not reiterate the evidence already summarized; even though the appellant attempted to cast doubt on this evidence, the words and actions attributed to the appellant at the time of the attempt to deliver the heroin are sufficient to prove that the appellant was a co-conspirator in this criminal offense. Since the evidence is sufficient to prove the appellant was a co-conspirator the hearsay testimony concerning the conversations between the undercover agents and Guerro and Almaguer was admissible, and the trial court did not err in admitting that testimony.

The appellant next complains of the alleged misconduct of one of the prosecutors. Defense counsel, while cross-examining one of the undercover agents asked: "And, you know that Mr. Guerro has pled guilty in this case and received five years?" Immediately, the prosecutor reacted, saying: "I am going to object to that lie, Your Honor. That is not the truth. He has not pled guilty and received...