Benjamin Moore v. State ( 2019 )

NOS. 12-18-00300-CR
12-18-00301-CR
12-18-00302-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BENJAMIN CARROLL MOORE, § APPEALS FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Benjamin Carroll Moore appeals his convictions for delivery of a controlled substance. In
two issues, Appellant challenges the legal sufficiency of the evidence to support his convictions
and the sufficiency of the evidence to corroborate the testimony of the confidential informant. We
affirm.
BACKGROUND
In three separate cases, Appellant was charged by indictment with delivery of a controlled
substance, namely, methamphetamine, in the amount of one gram or more, but less than four
grams, a second degree felony; 1 in the amount of less than one gram, a state jail felony; 2 and in the
amount of one gram or more, but less than four grams, a second degree felony. 3 Appellant pleaded
“not guilty,” and the cases proceeded to a jury trial.
1
See TEX. HEALTH & SAFETY CODE § 481.112(a), (c) (West 2017).
2
See TEX. HEALTH & SAFETY CODE § 481.112(a), (b) (West 2017).
3
See TEX. HEALTH & SAFETY CODE § 481.112(a), (c) (West 2017).
At trial, Officer Wesley Blake Waggonner, a narcotics investigator with the Angelina
County Sheriff’s Department, testified that Timothy Wayne Shepherd was stopped for a traffic
violation on May 21, 2017, and was found to be in possession of methamphetamine. As a result,
Shepherd signed a contract with the narcotics division of the sheriff’s department and agreed to be
a confidential informant. Shepherd’s contract required him to purchase narcotics from three
different drug dealers in Angelina County, Texas.
On June 13, 2017, Shepherd contacted Waggonner to make his first “buy.” Waggonner,
Shepherd, and Waggonner’s lieutenant met at a predetermined location. Waggonner and his
lieutenant searched Shepherd’s vehicle and person in order to determine if he had narcotics in his
vehicle or any money on his person. He then gave Shepherd money and video and audio recording
devices. Waggonner and his lieutenant followed Shepherd to Appellant’s residence but, because
the road was a dead end, he and his lieutenant were only able to watch from the end of the road.
The video recording shows that after Shepherd arrived, he was informed that Appellant was at a
friend’s house. Shepherd left Appellant’s residence and when he passed Appellant on the road,
returned to the residence. Appellant and Shepherd went to Appellant’s tool shed and according to
Waggonner, and not disputed during trial, Shepherd asked for “100,” i.e., $100.00 of
methamphetamine. According to Shepherd, Appellant handed him the narcotics, although the
video recording stopped before and during the transfer. The audio recording did not stop. When
Shepherd exited the residence, Waggonner and his lieutenant followed Shepherd to the
predetermined location, obtained the narcotics, and searched Shepherd’s person and vehicle again.
Waggonner entered the methamphetamine purchased by Shepherd into evidence and reviewed the
video and audio of the “buy.” He stated that Shepherd purchased $100.00 of methamphetamine or
2.70 grams. According to Waggonner, he recognized the voices on the video recording as
Appellant’s and Shepherd’s, and identified screen shots from the video recording as Appellant, his
residence, and his vehicle.
On June 25, 2017, Shepherd contacted Waggonner to make his second “buy.” Again,
Waggonner and Shepherd met at a predetermined location, and he searched Shepherd’s person and
vehicle, gave him money and recording devices, followed him to Appellant’s residence, and
watched Shepherd enter the property. Again, Waggonner was unable to watch the “buy” close to
Appellant’s residence. Shepherd arrived at Appellant’s residence and entered the residence.
Another person went into the bedroom and informed Appellant that someone wanted “60.”
2
Shepherd entered the bedroom and the video recording shows foil packaging and multiple strikes
of a lighter. Waggonner stated that Appellant used the lighter to seal the packaging. However, the
video recording does not show a hand-to-hand transfer of the narcotics. Again, Shepherd exited
the residence, and Waggonner followed Shepherd to the predetermined location, obtained the
narcotics, and searched Shepherd’s person and vehicle again. Waggonner entered the
methamphetamine purchased by Shepherd into evidence and reviewed the video and audio of the
“buy.” He stated that Shepherd purchased $60.00 of methamphetamine or 0.72 grams. Waggonner
identified screen shots from the video recording as Appellant, Appellant’s vehicle, and Shepherd.
He also identified Appellant laying on the bed and Appellant’s voice.
On July 22, 2017, Shepherd contacted Waggonner to make his third “buy.” Again,
Waggonner and Shepherd met at a predetermined location, and he searched Shepherd’s person and
vehicle, gave him money and recording devices, followed him to Appellant’s residence to meet
Appellant, and watched Shepherd enter the property. The video recording shows Appellant and
Shepherd walking to Appellant’s tool shed. Then, Appellant contacted his supplier, and told him
that he needed an “eight ball,” or an eighth of an ounce. Shepherd waited at Appellant’s residence
over an hour for the supplier to arrive with the narcotics. At some point, Shepherd left his vehicle,
said “appreciate it,” and left the residence. However, the video recording does not show a hand-
to-hand transfer. Again, Shepherd exited the residence, Waggonner followed Shepherd to the
predetermined location, obtained the narcotics, and searched Shepherd’s person and vehicle.
Waggonner entered the methamphetamine purchased by Shepherd into evidence and reviewed the
video and audio of the “buy.” He stated that Shepherd purchased $100.00 of methamphetamine or
3.03 grams. According to Waggonner, he identified screen shots from the video recording as
Appellant, Appellant’s vehicle, and Shepherd. He also identified Appellant’s voice and his person
on the video recording partially by his tattoos.
At the conclusion of the trial, the jury found Appellant guilty of delivery of a controlled
substance, methamphetamine, in each of the three cases. The jury assessed Appellant’s punishment
at seventeen years of imprisonment in the first case; two years of confinement in a state jail facility
in the second case; and seventeen years of imprisonment in the third case. This appeal followed.
3
CORROBORATION OF INFORMANT’S TESTIMONY
In his second issue in each case, Appellant contends that the evidence is insufficient to
corroborate the testimony of the confidential informant.
Applicable Law
The legislature has mandated that a defendant may not be convicted by the statements
of a confidential informant unless that testimony is corroborated in the following manner:
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code,
on the testimony of a person who is not a licensed peace officer or a special investigator but
who is acting covertly on behalf of a law enforcement agency or under the color of law
enforcement unless the testimony is corroborated by other evidence tending to connect the
defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows
the commission of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.141 (West 2005).
A challenge to the sufficiency of the corroboration is not the same as a challenge to the
sufficiency of the evidence to support the verdict as a whole. See Cathey v. State, 992 S.W.2d 460,
462–63 (Tex. Crim. App. 1999). To corroborate a confidential informant’s testimony, all the law
requires is that there be some non-confidential-informant evidence that tends to connect the
accused to the commission of offense. See Young v. State, 95 S.W.3d 448, 451 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). In other words, the evidence must simply link the accused in
some way to the commission of the crime and show that “rational jurors could conclude that this
evidence sufficiently tended to connect [the accused] to the offense.” Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008) (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim.
App. 1997)).
To determine the sufficiency of the corroborative evidence, we eliminate the testimony of
the confidential informant and ask whether other inculpatory evidence tends to connect the accused
with the commission of the offense. See Young v. State, 183 S.W.3d 699, 702-03 (Tex. App.—
Tyler 2005, pet. ref’d) (citing McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997)).
The “tends-to-connect” standard does not present a high threshold. See Cantelon v. State, 85
S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.). Evidence showing that the “accused was at
or near the scene of the crime at or about the time of its commission, when coupled with other
suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient
4
corroboration to support a conviction. Malone, 253 S.W.3d at 257 (quoting Brown v. State, 672
S.W.2d 487, 489 (Tex. Crim. App. 1984)) But “mere presence alone of a defendant at the scene of
a crime is insufficient to corroborate accomplice testimony.” Id. (quoting Golden v. State, 851
S.W.2d 291, 294 (Tex. Crim. App. 1993) (citing Meyers v. State, 626 S.W.2d 778, 780 (Tex. Crim.
App. 1982))).
Analysis
Here, the informant, Shepherd, was corroborated in all three cases by the testimony of
Waggonner and the video recording. In each case, the non-confidential informant evidence
established that (1) Shepherd agreed to be a confidential informant, (2) Shepherd’s vehicle and
person were searched prior to the “buy” to ensure that he did not have any narcotics or money in
his vehicle or on his person, (3) Waggonner followed Shepherd to Appellant’s residence and
watched the “buy” nearby, and (4) Waggonner searched Shepherd’s vehicle and person after the
“buy” and received the methamphetamine purchased by Shepherd. Regarding the “buy” of 2.70
grams of methamphetamine, Waggonner provided Shepherd with $100.00 and video and audio
recordings, identified Shepherd’s and Appellant’s voices on the video recording, identified
Appellant on the video recording and through screen shots of the video recording, and the video
recording shows Appellant and his vehicle. Regarding the 0.72 grams of methamphetamine,
Waggonner provided Shepherd with $60.00 and video and audio recordings, identified Appellant
and Appellant’s vehicle on the video recording and through screen shots of the video recording,
identified Appellant’s voice on the video recording, and identified Appellant laying or sitting on
his bed and attempting to seal the packaging with a lighter. Regarding the “buy” of the 3.03 grams
of methamphetamine, Waggonner provided Shepherd with $100.00 and video and audio
recordings, identified Appellant’s voice on the video recording, identified Appellant on the video
recording and through screen shots of the video recording partially through his tattoos, and the
video recording shows Appellant and his vehicle.
Based on this evidence, Waggonner’s testimony and the video recording provided the
evidence that tends to connect Appellant to the commission of the offense, delivery of a controlled
substance, methamphetamine. See TEX. CODE CRIM. PROC. ANN. art. 38.141; Young, 95 S.W.3d
at 451. Because we determined that the evidence was sufficient to corroborate the testimony of the
confidential informant in each case, we overrule Appellant’s second issue.
5
EVIDENTIARY SUFFICIENCY
In his first issue in each case, Appellant argues that the evidence is legally insufficient to
support his conviction.
Standard of Review
In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question 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). This standard gives full play to the responsibility
of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Padilla v. State, 326 S.W.3d 195, 200
(Tex. Crim. App. 2010). The jury is the sole judge of the witnesses’ credibility and the weight to
be given their testimony. Brooks, 323 S.W.3d at 899.
When the record supports conflicting inferences, we presume that the fact finder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A conclusion of guilt can rest on the combined and
cumulative force of all the incriminating circumstances. Hernandez v. State, 190 S.W.3d 856, 864
(Tex. App.—Corpus Christi 2006, no pet.).
Applicable Law
A person commits the offense of delivery of a controlled substance if the person knowingly
delivers, or possesses with intent to deliver, a controlled substance. TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a) (West 2019). “Deliver” means to transfer, actually or constructively, to another
a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is
an agency relationship. Id. § 481.002(8) (West 2019). The term includes offering to sell a
controlled substance, counterfeit substance, or drug paraphernalia. Id. In other words, a delivery
6
may be effectuated through: (1) actual transfer, (2) constructive transfer, or (3) an offer to sell. See
id. An actual transfer consists of a complete transfer of real possession and control of the
contraband from the transferor to the transferee or his agents, while a constructive transfer covers
a variety of situations where the transferor does not manually transfer the contraband to the
transferee, but may include a transfer through an intermediary and a transfer effected by telling the
recipient where the contraband is located. Sims v. State, 117 S.W.3d 267, 270–77 (Tex. Crim.
App. 2003); Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992).
Analysis
Appellant’s insufficiency argument in each case contends that because the evidence is
insufficient to corroborate the confidential informant, the evidence is legally insufficient.
However, we have determined that in each of the three cases, the evidence was sufficiently
corroborated. In each of the three cases, Shepherd, the confidential informant, agreed to “buy”
methamphetamine from Appellant, and his vehicle and person were searched prior to the “buy” to
ensure that he did not have any narcotics or money in his vehicle or on his person. Waggonner
provided Shepherd with money and video and audio recordings, and followed Shepherd to
Appellant’s residence to watch each “buy” nearby. In each case, Waggonner identified Appellant’s
voice, person, and vehicle on the video recording. Shepherd testified that in each case, Appellant
handed him the methamphetamine in exchange for money. Waggonner also searched Shepherd’s
vehicle and person after each “buy” and received the methamphetamine purchased by Shepherd.
According to the evidence admitted at trial, Shepherd purchased methamphetamine from
Appellant in the amounts of 2.70 grams, 0.72 grams, and 3.03 grams.
From this evidence, the jury reasonably could have determined that Appellant transferred
a controlled substance, methamphetamine, to Shepherd in each of the three cases, that Waggonner
identified Appellant’s person and voice on each video recording, and that Shepherd’s vehicle and
person were searched before and after each “buy” in order to ensure that he had neither narcotics
nor money, other than the methamphetamine purchased, either before or after each “buy.” Viewing
the evidence in the light most favorable to the prosecution, we conclude that a rational jury could
have found each element of delivery of a controlled substance, methamphetamine, beyond a
reasonable doubt in each of Appellant’s three cases. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(a); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 912. In each
case, we overrule Appellant’s first issue on appeal.
7
DISPOSITION
Having overruled Appellant’s first and second issues in each case on appeal, we affirm the
judgments of the trial court.
BRIAN HOYLE
Justice
Opinion delivered November 27, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
8
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 27, 2019
NO. 12-18-00300-CR
BENJAMIN CARROLL MOORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2018-0045)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 27, 2019
NO. 12-18-00301-CR
BENJAMIN CARROLL MOORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2018-0046)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 27, 2019
NO. 12-18-00302-CR
BENJAMIN CARROLL MOORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2018-0047)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.