Smith v. State

• Decision Date: 30 August 2016
• Docket Number: NO. 03-15-00668-CR,03-15-00668-CR
• Citation: 500 S.W.3d 685
• Parties: Charles Newman Smith, Jr., Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

500 S.W.3d 685

Charles Newman Smith, Jr., Appellant

v.The State of Texas, Appellee

NO. 03-15-00668-CR

Court of Appeals of Texas, Austin.

Filed: August 30, 2016

Gary W. Bunyard, Assistant District Attorney, Llano, TX, for state.

Angela Moore, San Antonio, TX, for appellant.

Before Justices Puryear, Pemberton, and Field

OPINION

David Puryear

, Justice

Charles Newman Smith, Jr., was charged with engaging in organized criminal activity by conspiring with several people to commit the offense of “unlawful delivery, dispensation, or distribution of a controlled substance, namely: four grams or more but less than 200 grams of Methamphetamine.” See Tex. Penal Code § 71.02(a)(5)

(setting out elements of offense of engaging in organized criminal activity); Tex. Health & Safety Code § 481.112(a), (d) (governing offense of delivery of controlled substance and providing that offense is first-degree felony if amount of controlled substance was four grams or more but less than 200 grams). At the end of the guilt-or-innocence phase of the trial, the jury found Smith guilty of the offense. At the end of the punishment phase, the jury recommended that Smith be sentenced to twenty-five years' imprisonment. See Tex. Penal Code § 71.02(b) (explaining that, in general, offense level of engaging in organized criminal activity “is one category higher than” underlying criminal offense committed); see also id. § 12.32(a) (listing permissible punishment range for first-degree felony). The district court rendered its judgment in accordance with the jury's verdicts. In two issues on appeal, Smith challenges the sufficiency of the evidence supporting his conviction and contends that the district court erred by failing to give a unanimity instruction. We will affirm the district court's judgment of conviction.

BACKGROUND

The indictment in this case alleged that “pursuant to a common scheme or continuing course of conduct” and “with the intent to establish, maintain, or participate in a combination or in the profits of a combination,” Smith collaborated to commit the offense of unlawfully delivering, dispensing, or distributing methamphetamine in an amount between four and 200 grams. The indictment specified that the combination consisted of Smith and “Nebes Montemayor, Guillermo Reyna, Abel Cardoso, Jimmy Hardin, Amy Borseth, Glen Alexander, Timothy Blackard, Joy Perez, Elizabeth Burch, Christopher Castillo, Cheri Gibbs, Kimberly Weston, Gina Magdaleno, and Charles Davidson, Jr.”

This case originated from an extensive investigation of Hardin, which was undertaken by various State and federal agencies over a period of several months. The agencies suspected that Hardin was the center of a drug-trafficking operation involving several people. As part of the investigation, the agencies monitored Hardin's home to see who would visit the home and how often, and the agencies also monitored Hardin's phone calls and “utilized informants to make purchases” of methamphetamine from Hardin. Two of the individuals that were recorded either calling Hardin or receiving calls from Hardin were Smith and his girlfriend Cindy Brinkley. After listening to phone calls in which potential drug exchanges were discussed, various law-enforcement personnel would sometimes initiate traffic stops of the individuals who had driven to Hardin's house or met him at another location in an effort to verify that a drug exchange had occurred or was about to.

Although Smith challenges much of the evidence pertaining to him personally, neither party disputes that the evidence presented during the trial established the following:

• An ounce is equivalent to twenty-eight grams and that an eightball is an eighth of an ounce of methamphetamine, which is also three-and-a-half grams;

• Hardin was at the center of a criminal enterprise in which he sold fifteen to twenty ounces of methamphetamine per week and that he sold to over 80 people who were identified through the wiretaps of his phone;

• Although over 80 people were identified through the wiretaps, the police only investigated those individuals who purchased more than three-and-a-half grams;

• Hardin received methamphetamine from at least the following two individuals: Reyna, who was Hardin's primary source, and Cardoso, who was Hardin's secondary source;

• Borseth was romantically involved with Hardin, lived with him, and helped him sell drugs;

• Blackard worked with Hardin as Hardin's enforcer, distributed drugs when Hardin needed him to, and facilitated drug transactions;

• Alexander stored weapons and drugs at his workshop for Hardin and allowed drug transactions to occur at the workshop;

• Montemayor acted as an interpreter for Reyna when Reyna would travel to meet with his distributors in the United States, and Hardin was recorded asking Montemayor for between ten and twenty ounces of methamphetamine;

• Hardin was recorded asking to buy five ounces of methamphetamine from Cardoso, and the police initiated a traffic stop of Cardoso after listening to this call and found over 137 grams of methamphetamine, which is almost five ounces;

• Weston, who is Blackard's wife, purchased methamphetamine from Hardin on behalf of David Milam on several occasions in amounts ranging from half of an ounce to an ounce and was arrested after the police initiated a traffic stop and found over 56 grams of methamphetamine;

• The police initiated a traffic stop of Castillo after he left Hardin's home, and the police found over 251 grams of methamphetamine; and

• The police initiated a traffic stop of Burch after observing her interactions with Hardin and recovered over twenty-seven grams of methamphetamine.

During the trial, various law-enforcement officers were called to the stand to discuss their investigation, including the extensive surveillance that was performed, the phone calls that were recorded, and the testing that was performed on substances collected from various individuals, and the State also called Brinkley and Weston to the stand. When presenting his case, Smith called his sister, Carrie Foster, and his friend, Karen Milder, to the stand. After listening to all of the evidence presented, the jury determined that Smith was guilty of the crime alleged.

DISCUSSION

Sufficiency of the Evidence

In his first issue on appeal, Smith does not contend that there is insufficient evidence to establish that a drug-trafficking scheme was in effect that centered around Hardin, but he contends that “[t]he evidence is legally insufficient to support that [he] engaged in organized criminal activity.” When challenging the sufficiency of the evidence, Smith asserts that “the State failed to prove that with intent to establish, maintain, or participate[ ] in a combination or profits of a combination, [he] participated in the distribution and sale of narcotics.” In particular, Smith urges that “[t]he State failed to prove that [he] engaged in any combination with any of the indicted actors” and that if the evidence proves that he is guilty of anything, “he is guilty of purchasing meth for his own personal use.”¹ Further, Smith notes that the State “never found large amounts of cash or drugs and did not find any sort of evidence that would indicate Smith was a dealer, such as, Baggies, ledger, or a scale.” Similarly, Smith highlights that in performing its investigation, the State never searched him, his house, or his car. Finally, Smith contends that the State failed to produce any evidence showing that he was “a dealer” other than the testimony of his girlfriend, Brinkley, who was also an alleged accomplice.

Under the Penal Code, a person commits the offense of engaging in organized criminal activity if, among other ways, “with the intent to establish, maintain, or participate in a combination or in the profits of a combination ..., the person commits ... one or more of” the enumerated offenses, including “unlawful ... delivery, dispensation, or distribution of a controlled substance or dangerous drug.”² Tex. Penal Code § 71.02(a)(5)

. Further, the Penal Code defines a “combination” as “three or more persons who collaborate in carrying on criminal activities” and explains that the “participants may not know each other's identity,” that “membership in the combination may change from time to time,” and that “participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.” Id. § 71.01(a). Regarding “profits,” the Code states that they are “property constituting or derived from any proceeds obtained, directly or indirectly, from an offense listed in Section 71.02.” Id. § 71.01(c).

To satisfy the combination element, the State must prove that there was “an agreement to act together in [a] continuing course of activity.” See Ledet v. State , 177 S.W.3d 213, 219 (Tex.App.—Houston [1st Dist.] 2005, pet. ref'd)

; see also

Munoz v. State , 29 S.W.3d 205, 208 (Tex.App.—Amarillo 2000, no pet.) (emphasizing that State must show “that the accused intended to establish, maintain, or participate in a group of three or more” and “that the members of the group intended to work together in a continuing course of criminal activities”). An agreement among a group “to work on a common project” may be inferred when each person's action is consistent with realizing “the common goal.” McGee v. State , 909 S.W.2d 516, 518 (Tex.App.—Tyler 1995, pet. ref'd) ; see Tex. Penal Code § 71.01(b) (providing that “[a]n agreement constituting conspiring to commit may be inferred from the acts of the parties”). Moreover, “even a single criminal offense can support a conviction” because “it is not the number of criminal actions that is determinative but whether the intent to engage in continuous criminal activities was shown.” Arredondo v. State , 270 S.W.3d 676, 683 (Tex.App.—Eastland 2008, no pet.) ; see

Bogany v. State , 54 S.W.3d 461, 463 (Tex.App.—Houston [1st Dist.] 2001, pet. ref'd) (explaining that organized-crime statute “does not require proof of a...