Isaac Rodriguez v. State ( 2011 )

NO. 07-10-0231-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 27, 2011
ISAAC RODRIGUEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,779; HONORABLE CECIL PURYEAR, JUDGE
Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1
MEMORANDUM OPINION
Following a jury trial, Appellant, Isaac Rodriguez, was convicted of the offense of
possession with intent to deliver a controlled substance (cocaine), four grams or more
but less than 200 grams, a first degree felony,2 and sentenced to thirty years. By six
issues, Appellant contests the legal and factual sufficiency of the evidence to support
the findings of "knowing possession of a controlled substance" and "intent to deliver"
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. § 75.002(a)(1) (West 2005).
2
Tex. Health & Safety Code Ann. § 481.112(d) (West 2010).
(issues one, two, five and six), and he contends the trial court erred in not treating the
testimony of the State's key witness as a "covert witness" pursuant to article 38.141 of
the Texas Code of Criminal Procedure (issues three and four). We affirm.
Background
Appellant and his sister, Sonia Rodriguez, lived together in an apartment located
in Lubbock County. Sonia became suspicious when Appellant engaged in suspicious
activities and started keeping "questionable" friends. She initiated a search of his
bedroom where she found a paper bag, containing plastic bags, containing a white
powdery substance she suspected as being a controlled substance. After consulting
with her parents, she eventually turned the paper bag and its contents over to law
enforcement. Although the apartment was never searched by law enforcement officials,
the contents of the paper bag were tested and found to consist of 133.9 grams of a
substance containing cocaine. Sonia cooperated with law enforcement by explaining
the circumstances whereby she came into possession of the paper bag and, eventually,
this prosecution ensued.
Issues One, Two, Five and Six - Sufficiency of the Evidence
We review challenges to the sufficiency of the evidence under the standards
discussed in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
and Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). We refer the parties to
those cases.
To prove the offense charged, the State had to show that Appellant knowingly
exercised care, custody or control over what he knew to be a controlled substance, and
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that he did so with the intent Ato transfer [the substance], actually or constructively, to
another . . . .@ Tex. Health & Safety Code Ann. '§ 481.002(8), 481.002(38) and
481.112(a) (West 2010). We review challenges to "knowing" possession and "intent to
deliver" by reviewing various factors discussed in Evans v. State, 202 S.W.3d 158, 162
(Tex.Crim.App. 2006) (discussing a non-exclusive list of factors that Texas courts have
recognized as sufficient, either singly or in combination, to establish possession of a
controlled substance); Triplett v. State, 292 S.W.3d 205, 208-09 (Tex.App.--Amarillo
2009, pet. ref'd) (discussing same); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.--
Houston [14th Dist.] 2005, no pet.) (discussing same); and, Williams v. State, 902
S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d) (discussing factors to be
considered in determining intent to deliver), and we refer the parties to those cases.
Further, the trier of fact is the sole judge of the weight of the evidence and
credibility of the witnesses; Tex. Code Crim. Proc. art. 38.04 (West 1979); Margraves v.
State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not re-evaluate the
weight and credibility determinations made by the fact-finder. Dewberry v. State, 4
S.W.3d 735, 740 (Tex.Crim.App. 1999). Thus, we resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.
2000).
In addition, each fact need not point directly and independently to the guilt of the
accused, as long as the cumulative effect of all the incriminating facts are sufficient to
support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)
(citing Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987)). Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
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circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214
S.W.3d 9, 13 (Tex.Crim.App. 2007). With that said, we turn to the record before us.
In this case, Appellant's sister and roommate testified that the controlled
substance in question was found in the bedroom used exclusively by Appellant, in what
he used as his clothes hamper. She also testified that her search of his bedroom was
instigated by her concern over his association with persons of questionable character
and his unusual behavior, including an instance where he received a phone call, left the
apartment to meet someone in the parking lot, and then shortly returned to the
apartment. Assuming, as we must, that the jury was allowed to draw reasonable
inferences from her direct testimony and that it may have resolved any credibility issue
in favor of that testimony, such evidence, albeit inferential, is sufficient for us to find that
a rational trier of fact could have found the essential elements of the offense charged
beyond a reasonable doubt. Issues one, two, five and six are overruled.
Issues Three and Four - Article 38.141
Appellant contends the State's key witness, Appellant's sister, was a "covert
witness" requiring corroboration pursuant to the provisions of article 38.141 of the Texas
Code of Criminal Procedure. We disagree.
Article 38.141 provides, in pertinent part, as follows:
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 special investigator but who is acting covertly on
behalf of law enforcement or under color of law enforcement unless the
testimony is corroborated by other evidence tending to connect the
defendant with the offense committed.
(Emphasis added).
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Neither the word "covertly" nor the phrase "acting . . . on behalf of law
enforcement or under color of law enforcement" are defined in the statute and we have
not been directed to any case specifically construing either provision. We are, however,
guided by the general principle that when construing a statute, words are to be given
their ordinary meaning unless the statute defines them or they are connected and used
with reference to a particular trade or subject matter or they are used as a term of art.
Tex. Gov=t Code Ann. ' 312.002 (West 2005). In that regard, to act covertly is to act in
a concealed, secretive, or disguised manner, and to act on behalf of someone is to act
as that person's representative or proxy.
Here, Sonia acted independently. She alone made the decision to investigate
Appellant's activities and to report her findings to her parents. Together with her
parents, without the assistance or encouragement of law enforcement, she made the
decision to report her findings to the police and to explain the circumstances
surrounding her coming into possession of the paper bag containing 133.9 grams of a
controlled substance. Simply put, Sonia was not a covert witness because she was not
acting on behalf of law enforcement. Issues three and four are overruled.
Conclusion
Having overruled each of Appellant issues, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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