Opinion
No. 05-08-00514-CR
Opinion Filed April 26, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F07-01215-I.
Before Justices O'NEILL, LANG, and MYERS.
OPINION
Following a plea of not guilty, appellant Cipriano Perez-Gonzalez was convicted by a jury of possession with intent to deliver a controlled substance, cocaine, in an amount of 400 grams or more. Punishment was assessed by the trial court at twenty years' imprisonment and a fine of $1000. In four issues on appeal, appellant contends the trial court erred by limiting his right to cross-examine a witness and failing to instruct the jury properly. For the reasons below, we decide appellant's four issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Vincente Vasquez testified at trial that he worked as a paid "informer" for the Dallas County Sheriff's Department. According to Vasquez, on approximately July 13, 2006, he met with appellant and another man, Cornejo, at a Waffle House restaurant. Vasquez testified he negotiated to purchase fifteen kilos of cocaine from appellant and Cornejo for $15,000 per kilo. The exchange of money for the cocaine was to take place the following day at a Jack-in-the-Box restaurant on Mockingbird near I-35 in Dallas County. Vasquez told detective Victor Rodriguez of the Dallas County Sheriff's Department about his conversation with appellant and Cornejo and the planned exchange. On the following day, Vasquez met appellant and Cornejo at the Jack-in-the-Box restaurant as planned. Vasquez testified appellant was driving a pickup truck in which Cornejo was a passenger. According to Vasquez, appellant opened the driver's side door of the pickup truck and showed Vasquez a bag containing "five kilos" that were individually packaged in opaque wrapping. Vasqez testified he had seen quantities of cocaine before and recognized the packages as cocaine. Vasquez stated appellant told him it was "too late for make business" and they talked about meeting at another time. Then, appellant and Cornejo drove away. Vasquez testified he called Rodriguez and told him he had seen cocaine in the truck being driven by appellant. Vasquez was paid $3500 for the information he provided to Rodriguez. Vasquez testified that "four or five years ago," he was convicted of drug possession and deported to Mexico. He stated that at that time, he made "arrangements with law enforcement agencies" to provide information about drug trafficking in return for being paid and allowed to remain in the United States. He testified he is in this country legally and is in the process of getting his resident alien card renewed. On cross-examination, Vasquez testified that approximately one week after his deportation, he made a "deal" with "INS, Juarez" in which he received a temporary visa to enter the United States and was given a Social Security number. He testified the temporary visa expired in 2001 and the renewal has been "in processing" since that time. He acknowledged that since the temporary visa expired, he has been in the United States illegally. According to Vasquez, the Dallas County Sheriff's Department knew that his visa had expired before he started working for them. He testified that his "deal" with the Dallas County Sheriff's Department included a promise by them to allow him to remain in the United States. Vasquez stated that over the past six years the Dallas County Sheriff's Department has paid him approximately $25,000, all in cash, and he signed receipts for that money and reported that money as income for tax purposes. He testified the Dallas County Sheriff's Department did not give him a "1099" tax form to fill out. Rodriguez testified he knew Vasquez as a "confidential informant" and had received information from him prior to the time of the events at issue. Rodriguez stated that in July 2006, Vasquez provided information that appellant and Cornejo were looking for a buyer for a large amount of cocaine. Rodriguez authorized Vasquez to proceed with the July 13, 2006 meeting at the Waffle House restaurant, which Rodriguez watched from a distance. The July 14, 2006 meeting at the Jack-in-the-Box restaurant also was conducted under law enforcement observation. Vasquez had been instructed to inform Rodriguez by phone "as soon as he had seen some drugs inside the vehicle." According to Rodriguez, Vasquez called him immediately following the meeting at the Jack-in-the-Box restaurant and said he "had seen five bricks which appeared to be cocaine." Based on that information, the pickup truck being driven by appellant was kept under surveillance and a "Dallas County marked unit" was instructed to conduct a traffic stop of that vehicle. Rodriguez testified "five bricks" were found in the back seat of the pickup truck. Following direct examination of Rodriguez and outside the presence of the jury, the State objected to questions it believed appellant intended to ask Rodriguez on cross-examination pertaining to compliance with federal tax and immigration laws with respect to Vasquez. Specifically, the State contended it would be improper for appellant to question whether Rodriguez (1) filed "1099 forms" for federal tax purposes with regard to the money paid to Vasquez or (2) obtained or sought permission from federal authorities to use Vasquez as an informant. The State argued (1) those two matters were "entirely collateral" and therefore not relevant and (2) questions on those matters would not be "proper impeachment or proper line of inquiry of Detective Rodriguez" pursuant to rule 608 of the Texas Rules of Evidence, which limits cross-examination as to specific instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility. See Tex. R. Evid. 608. The trial court stated it was sustaining the State's objection that "the two areas would be collateral." A July 19, 2009 statement handwritten in Spanish and signed by appellant and a written translation of that statement were admitted into evidence at trial. Dalton Swift, the translator of that statement, testified at trial that appellant wrote in that statement that he had met Cornejo in a bar approximately three weeks earlier. Cornejo had asked appellant if he knew anyone interested in buying drugs. A person at the bar named Angel told appellant he had a friend who was interested in buying some "merchandise" from Cornejo. Approximately a week and a half later, appellant, Cornejo, Angel, and Angel's friend, who was named "Alex or Jose," met at a Waffle House restaurant, then went to a bar. Appellant wrote that on the day after that, he was with Cornejo in Cornejo's truck near "Empire Central and Freeway 35." According to appellant's statement, Cornejo got out of the truck, walked to a small car, then returned to the truck with "the bag like presents," which Cornejo put behind the front seat of the truck. Appellant wrote that Cornejo told him to call "Alex or Jose," who agreed to meet them at a Jack-in-the-Box restaurant. When "Alex or Jose" arrived, appellant was driving the truck. Cornejo showed "Alex or Jose" the "material," but told "Alex or Jose" it was too late to do any business that day. Appellant wrote that he and Cornejo drove away from the restaurant and were subsequently stopped by police and taken to the police station. Deputy Lisa Hicks of the Dallas County Sheriff's Department testified that on July 14, 2006, she observed the traffic stop of the pickup truck appellant was driving. After the vehicle was stopped and the occupants were taken into custody, Hicks took custody of the narcotics in the vehicle. Hicks stated the packages found in the truck were wrapped in brown tape and the contents of the packages could not be seen through the tape. She stated that was a typical way of packaging narcotics. Hicks testified she field-tested the substance in one of the packages from the truck and that substance "field tested positive for cocaine." She stated she did not have a search warrant or arrest warrant and did not receive appellant's consent to search the truck. She testified there was probable cause to stop and search the vehicle based on the information from Vasquez that there were five kilos of cocaine in the vehicle. The five packages found in the truck were admitted into evidence. Investigator Will Fritz of the Dallas County Sheriff's Department testified that on July 14, 2006, he was directed to stop the vehicle being driven by appellant and he did so. He stated he had information from Rodriguez that a confidential informant had seen drugs in the vehicle. Fritz testified he pulled the vehicle over and took the occupants into custody. He testified a shopping bag containing "brown bricks" was in plain sight on the rear floorboard of the vehicle behind the front seat. Fritz testified he did not search the vehicle. Marilyn Medley, a drug chemist at Dallas County Southwestern Institute of Forensic Sciences, testified she conducted testing on the contents of the five packages admitted into evidence in this case. According to Medley, the five packages contained a total of more than four kilograms of pure cocaine. Detective Joe Swanson of the Dallas County Sheriff's Department Intelligence Division testified he conducted surveillance of the July 14, 2006 meeting of appellant, Cornejo, and Vasquez at the Jack-in-the-Box restaurant. He observed Vasquez looking into an open door on the driver's side of a pickup truck driven by appellant. According to Swanson, the pickup truck was registered to Cornejo. Swanson testified he had worked with Vasquez before that time and information given by Vasquez regarding trafficking of cocaine had been proven to be true and correct. Swanson stated that the total amount of cocaine in the five packages, if processed in the typical fashion, could possibly be sold "on the streets" for approximately $1.5 million. Over objection by appellant, Officer Barry Ragsdale of the Dallas Police Department testified he had specialized experience in investigating narcotics trafficking. He testified cocaine is usually packaged in "kilogram size quantities" when it comes into the United States. He stated the amount of cocaine in the packages admitted into evidence was "definitely for distribution" rather than personal use. After both sides closed, appellant objected to the trial court's proposed jury charge on the ground that the charge did not include an instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure that evidence obtained in violation of the law shall be disregarded. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Specifically, counsel for appellant stated My argument for the inclusion, Your Honor, of 38.23 language in the jury charge is on the date in question that this offense occurred, the government was using as one of its agents someone who was illegally in the country, by his own admission. He was here illegally during that time period. So when he had this meeting with my client and other individuals, he was here illegally. When he conducted this deal, he was here illegally. And when he contacted the law enforcement and said the dope is in the car, he was here illegally. So based upon that, they made a search or they stopped that vehicle based on evidence that was obtained illegally because an agent of the government was working illegally in the United States. Appellant's objection was denied by the trial court. Following the jury's finding of guilt and the trial court's assessment of punishment, appellant filed a timely motion for new trial. The record is silent as to the disposition of that motion. This appeal timely followed.II. LIMITATION OF CROSS-EXAMINATION
In his first issue, appellant asserts the trial court "erred in limiting his cross-examination of Detective Rodriguez concerning the payments made to the informant (Vasquez) who was admittedly in the country illegally and whether or not those payments were reported to the Internal Revenue Service as well as whether or not Detective Rodriguez sought or received permission from the [f]ederal authorities to have the informant here in the country working as an agent of law enforcement." The State responds that the questions appellant sought to ask Rodriguez were properly prohibited by the trial court because those questions were improper under Texas Rules of Evidence 608, 402, and 403.A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The trial court's ruling is reviewed in light of the evidence that was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).B. Applicable Law
Texas Rule of Evidence 402 provides that all relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence that is not relevant is inadmissible. Id. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401; see also Poole v. State, 974 S.W.2d 892, 905 (Tex. App.-Austin 1998, pet. ref'd) ("collateral" matter is one not relevant to material issue in case) (citing Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990)). A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Tex. R. Evid. 611(b). However, "the proponent of a vein of cross examination must show the relevancy of the questions." Arroyo v. State, 259 S.W.3d 831, 835 (Tex. App.-Tyler 2008, pet. ref'd) (citing Carpenter v. State, 979 S.W.2d 633, 635 (Tex. Crim. App. 1998)); see also Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987).C. Application of Law to Facts
With respect to the relevancy of whether the payments made by the Dallas County Sheriff's Department to Vasquez were reported to the Internal Revenue Service, appellant's counsel contended at trial that if such payments had not been reported, Vasquez had received "a benefit of not having to file income tax" as to such payments. Appellant's counsel argued at trial that he was "trying to elicit every single benefit that [Vasquez] has received, which is a responsibility the State is supposed to tell us." As to the relevancy of whether Rodriguez sought or received permission from federal authorities to have Vasquez in this country working as an "agent of law enforcement," appellant's counsel asserted at trial Again, we are talking about a State sponsored witness. And I have at my disposal the opportunity to impeach them on anything that may be a benefit that he has received. And obviously if he has been allowed by the directions of his handler, the deputy in this case, to remain in this country, I'm entitled to inquire that detective of that because that is a benefit. On appeal, appellant asserts the purpose of the questions at issue was to elicit testimony to "establish bias and a motive to lie" as to both Vasquez and Rodriguez and "establish a request for a charge under [article] 38.23 for illegally obtained evidence because law enforcement knowingly used Vasquez as an [sic] paid agent even though he was in the [c]ountry illegally." Additionally, appellant cites the Confrontation Clause of the Sixth Amendment to the United States Constitution and contends the limitation of cross-examination at issue violated his right "to confront [Rodriguez] on critical issues involving law enforcement's own illegal activity in using an illegal alien as an informant in violation of federal law." See U.S. Const. amend. VI. However, the record shows appellant's arguments regarding the Confrontation Clause and that he sought the cross examination to show the evidence was illegally obtained in order to request a charge respecting article 38.23 were not presented to the trial court as bases for allowing the inquiries at issue. Therefore, those arguments present nothing for this Court's review. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (where defendant did not clearly articulate in trial court that Confrontation Clause demanded admission of evidence at issue, such error was not preserved); see also Clarke v. State, 270 S.W.3d 573, 582 (Tex. Crim. App. 2008) (particular argument relied upon on appeal must have been presented to trial court). Consequently, we address only appellant's argument that the inquiries at issue should have been allowed for the purpose of showing "bias and a motive to lie" as to Vasquez and Rodriguez. The proponent of a vein of cross examination must show the relevancy of the questions. Arroyo, 259 S.W.3d at 835. Accordingly, appellant was required to establish some causal connection or logical relationship between Rodriguez's alleged disregard of federal tax and immigration laws and the potential bias or motive of Vasquez or Rodriguez. See Carpenter, 979 S.W.2d at 634. With respect to appellant's contention that Rodriguez did not provide Vasquez with a "1099 form" for federal tax purposes, the record does not show such a form was required to be completed in this case. Further, even assuming such a form was required, there is no evidence in the record that Rodriguez was the person responsible for providing such a form to Vasquez or reporting the payments at issue to the Internal Revenue Service. Thus, whether Rodriguez provided such a form to Vasquez or reported such payments is not probative as to whether Vasquez received the alleged "benefit" of not having such payments reported. Cf. Lopez v. State, 18 S.W.3d 220, 225-26 (Tex. Crim. App. 2000) (concluding evidence appellant sought to admit had no probative value in impeaching witness's credibility). Similarly, because there is no evidence in the record to show Rodriguez had a responsibility to provide a "1099 form" to Vasquez or to file such a form with the Internal Revenue Service, it is unclear how Rodriguez's alleged failure to do so could have any probative value as to Rodriguez's own bias or motive. With respect to whether Rodriguez sought or received permission from federal authorities to have Vasquez "here in the country working as an agent of law enforcement," the record shows Vasquez testified without objection that as part of his "deal" with the Dallas County Sheriff's Department, he was allowed to remain in the United States even though his visa had expired. It is not clear from the record, and appellant does not explain, how the additional question of whether Rodriguez received federal permission for that arrangement is probative of whether such benefit was received by Vasquez. Further, appellant does not explain, and the record does not show, how any alleged noncompliance with federal immigration law would be probative as to bias or motive to lie on the part of Rodriguez in support of Vasquez's testimony that such a benefit was received. Based on the foregoing analysis, we cannot conclude the trial court's ruling was outside the zone within which reasonable persons might disagree. See Walters, 247 S.W.3d at 217; McDonald, 179 S.W.3d at 576. Therefore, we cannot conclude the trial court abused its discretion by limiting appellant's cross-examination of Rodriguez. See Walters, 247 S.W.3d at 217; McDonald, 179 S.W.3d at 576; see also Tex. R. Evid. 402 (evidence that is not relevant is inadmissible). We decide against appellant on his first issue.III. JURY CHARGE ERROR A. Standard of Review
In reviewing a claim of jury charge error, the first step is to determine whether there is error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If there was error and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of the defendant," which has been defined to mean there must be "some harm." Id. If error exists, but was not objected to, reversal is not required unless the error is so egregious that the defendant was denied a fair and impartial trial. Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. See Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). To determine whether an error is so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. Ngo, 175 S.W.3d at 750 n. 48 (citing Almanza, 686 S.W.2d at 171).B. Analysis 1. Appellant's Entitlement to Article 38.23(a) Jury Instruction
In his second and fourth issues, appellant asserts he was entitled to a jury instruction pursuant to article 38.23(a) of the Texas Code of Criminal Procedure regarding consideration of evidence obtained illegally.a. Applicable Law
Article 38.23(a) of the Texas Code of Criminal Procedure reads as follows:No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. Tex. Code Crim. Proc. Ann. art. 38.23(a). The Texas Court of Criminal Appeals has explained that the "first sentence [of Article 38.23(a)] speaks to the admissibility of evidence" and the second sentence "speaks to the jury instruction." Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). "[A]n objection to the admissibility of evidence under the first sentence of Article 38.23 is not a prerequisite to the right to a jury instruction regarding a disputed factual issue under the second sentence of Article 38.23." Id. at 202 (emphasis original). "Even when the defendant affirmatively states that he has no objection to the admission of certain evidence, he may still be entitled to an Article 38.23 jury instruction." Id. The terms of article 38.23(a) are "mandatory," and when the proper requirements are met, a defendant has a statutory right to have the jury charged accordingly. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); see also Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005). The three requirements a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a) are as follows: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden, 242 S.W.3d at 511; see also Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). The factual dispute required to trigger an article 38.23(a) instruction can be raised "only by affirmative evidence, not by mere cross-examination questions or argument." Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008). If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law, and the trial court acts properly in refusing a request to charge the jury. Madden, 242 S.W.3d at 511.
b. Application of Law to Facts i. Lack of Probable Cause
In his second issue, appellant contends the trial court erred by "failing to sua sponte give a jury instruction under [article 38.23(a) of the code of criminal procedure] concerning the illegal arrest of [appellant]." Appellant asserts While the police did observe the confidential informant meet with [appellant], the surveillance did not include any capability to hear the conversations between the informant and [appellant]. The police did not observe any drug evidence themselves until they conducted the illegal search of the vehicle. The officers were only able to confirm the possibility that there were any drugs based upon the informant calling Rodriguez on the phone after the alleged drug deal fell through. This conversation allegedly involved the informant seeing objects packaged in tape wrapped bricks but the informant admitted that he never saw what was inside the bricks since he could not see through the tape. Thus, there was no probable cause based upon that information to make an arrest since the police did not actually witness any crime being committed nor was the information provided by the informant sufficient to establish probable cause. (citations to record omitted). According to appellant, because "a factual dispute existed about the arrest of [appellant] and the court was aware of same," the trial court was required to include, sua sponte, a jury instruction based upon article 38.23 informing the jury that it could disregard the evidence if it believed or had a reasonable doubt that the evidence was obtained illegally. Further, appellant asserts that because the drug evidence would have been disregarded under such an instruction, the trial court's error "amounted to egregious harm." The State responds that appellant "forfeited his right to have the jury disregard the evidence" because he agreed at trial that "the evidence derived from the stopping of his vehicle and his arrest was admissible" and "requested a 38.23 instruction only on a different basis." Further, the State argues appellant does not assert there was any contested factual issue material to the lawfulness of the stop or search of his vehicle. The record shows that at the start of trial, appellant's counsel told the trial court appellant did not wish to go forward with a previously requested suppression hearing and "does not believe any laws were violated in obtaining his statement and/or the stop." Further, when the drugs found in the vehicle being driven by appellant were offered into evidence, appellant's counsel stated, "No objection." However, "[e]ven when the defendant affirmatively states that he has no objection to the admission of certain evidence, he may still be entitled to an Article 38.23 jury instruction." Holmes, 248 S.W.3d at 202. "`Probable cause' for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense." Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires consideration of the totality of the circumstances facing the arresting officer. Id. Under Texas Health and Safety Code section 481.112, a person commits an offense if he knowingly possesses cocaine with intent to deliver. Tex. Health Safety Code Ann. § 481.112 (Vernon Supp. 2009). Here, appellant contends the State "failed to demonstrate that probable cause existed for [appellant's] warrantless arrest based upon the confidential informant's information." However, appellant does not identify any conflict in the evidence that raised a disputed fact issue material to the existence of probable cause, and we find none. See Garza, 126 S.W.3d at 86-87 (appellant's disagreement with conclusion that probable cause was shown was not same as appellant's controverting facts). Thus, an article 38.23 jury instruction regarding the legality of appellant's arrest would not "ask the jury to decide a disputed issue of historical fact," but rather would ask the jury to decide a question of law. See Madden, 242 S.W.3d at 511; see also Garza, 126 S.W.3d at 86 (where none of circumstances surrounding search were controverted by appellant, question of whether search was legal was question of law). Such an instruction would be "wholly incorrect." See Madden, 242 S.W.3d at 511. Accordingly, we conclude the trial court did not err by "failing to sua sponte give a jury instruction under [article 38.23(a)] concerning the illegal arrest of [appellant]." Appellant's second issue is decided against him.ii. Illegal Status of Informant
In his fourth issue, appellant contends the trial court erred by denying the article 38.23(a) jury charge he requested because "the informant was working as an agent of law enforcement which knew that the informant was in the United States illegally." Appellant asserts the evidence at trial showed that "Rodriguez violated the law in using the informant, Vasquez, to work for the [s]heriff's office as a paid informant while knowing that Vasquez was in the [c]ountry illegally and failing to get proper approval or authorization from the [f]ederal [g]overnment for Vasquez to remain in the [c]ountry while working for the [s]heriff's [d]epartment." According to appellant, "the evidence obtained by law enforcement based upon its use of the informant who was in the country illegally was obtained in violation of the law." Further, appellant alleges, "Rodriguez along with the other law enforcement officers [sic] conduct in using an alien to act as an informant for the Dallas County Sheriff's Department in order to try and set up a drug deal and then paying the informant and allowing the informant to stay in the country illegally is outrageous and fundamentally unfair as to deprive the [a]ppellant of due process." Appellant asserts he was harmed because "[h]ad the jury suppressed the drug evidence" that was "illegally obtained in violation of the law," there would have been no conviction. The State responds that "[a]ny violation of the federal immigration laws did not affect the admissibility of the evidence gathered by the police informer (or require an instruction to the jury as though it did)." While appellant cites the Fifth and Fourteenth amendments to the United States Constitution in support of his argument, he does not explain how those amendments apply to the facts of this case. Appellant directs this Court to "[a]lso see" United States v. Valdovinos-Valdovinos, 588 F.Supp. 551 (N.D. Cal. 1984), rev'd on other grounds, 743 F.2d 1436 (9th Cir. 1984), in which the court concluded the government's conduct in advising Mexican citizens to enter the U.S. illegally for the purpose of tracking them in hopes of arresting their "transporters" was "outrageous" and the government was not entitled to benefit in any way from such conduct. Additionally, appellant cites United States v. Arteaga, 807 F.2d 424, 426 (5th Cir. 1986), for the proposition that "[t]he due process clause places other limits on improper conduct by law enforcement agents even as against culpable persons." In Arteaga, which involved the government's use of a former lawyer of the defendant as an informant, the court concluded the evidence supported the jury's rejection of the entrapment defense and finding of no due process violation and stated "[i]t is well-established in this circuit that `a due process violation will be found only in the rarest and most outrageous circumstances.'" Id. at 426. Appellant does not explain, and the record does not show, how those cases are applicable to the facts before us. Appellant cites no cases, and we have found none, in which the conduct at issue in this case, or similar conduct, was recognized to be "outrageous" or in violation of due process. Further, appellant does not address, and the record does not show, how the alleged violation of any federal immigration law affected the legality of the "obtaining" of any evidence in this case. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (jury shall be instructed that if it believes, or has reasonable doubt, that evidence "was obtained in violation of the provisions of this Article," jury shall disregard any such evidence "so obtained"). Accordingly, we conclude appellant's fourth issue presents nothing for this Court's review. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (constitutional issue inadequately briefed where appellant presented no authority in support of his argument); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (although appellant was not precluded from making "novel argument for which there is no authority directly on point," issue was inadequately briefed where appellant failed to provide relevant authority suggesting how actions at issue violated appellant's constitutional rights); King v. State, 17 S.W.3d 7, 23 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (appellant failed to adequately brief due process argument where he presented court with only abstract assertion and did not address governing legal principles or apply such principles to facts); see also Tex. R. App. P. 38.1(i) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). We decide appellant's fourth issue against him.2. Instruction Regarding Lesser Offense
The record shows the indictment in this case alleged appellant "did unlawfully and knowingly possess with intent to deliver" four hundred grams or more of cocaine. The charge of the court instructed the jury that if they acquitted appellant of "possession with intent to deliver" a controlled substance, they were to next consider whether he was guilty of "possession" of a controlled substance. The application paragraph in the charge of the court regarding the offense of "possession" read as follows:Considering all the law and the evidence before you, if you find from the evidence beyond a reasonable doubt that . . . [appellant], acting with intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid another person, to-wit: [Cornejo], to unlawfully, knowingly possess a controlled substance, to-wit: cocaine [in an amount of four hundred grams or more], then you will find [appellant] guilty as charged in the indictment.(emphasis added). In his third issue, appellant contends the trial court erred by "improperly instructing the jury that if it found [appellant] guilty as a party of the lesser included offense of possession then the jury was authorized to find [appellant] guilty of possession with intent to deliver as charged in the indictment." Appellant asserts he was egregiously harmed because it cannot be determined if the jury found him guilty of "possession with intent to deliver" as set forth properly elsewhere in the charge or whether the jury found him guilty of such offense because it followed the erroneous instruction. The State "agrees that the jury charge should have used `guilty of the lesser offense of possession of more than 400 grams of controlled substance' rather than `guilty as charged in the indictment.'" However, the State argues that the error in the instruction concerning the lesser offense of "mere possession" caused appellant no actual or egregious harm. The State asserts the jury charge as a whole adequately guided the jury to a just and fair verdict. The record shows no objection to the wording of the instruction at issue. Therefore, reversal is not required unless the error is so egregious that the defendant was denied a fair and impartial trial. See Barrios, 283 S.W.3d at 350. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. See Allen, 253 S.W.3d at 264. To determine whether an error is so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. See Ngo, 175 S.W.3d at 750 n. 48 (citing Almanza, 686 S.W.2d at 171). In support of his argument that he was egregiously harmed by the erroneous application paragraph at issue, appellant cites Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). In Hutch, police testified that the vehicle in which the defendant was riding was stopped because the driver and defendant were not wearing seatbelts. Id. at 169. Cocaine was found in the vehicle, and the defendant was arrested. Id. At trial, the defendant testified he and the driver of the vehicle were wearing seatbelts and argued the stop was thus illegal. Id. In an application paragraph of the charge of the court, the trial court erroneously instructed the jury that if it found the defendant and driver were not wearing seatbelts, the "stopping of the accused would be illegal." Id. Following the defendant's conviction, the First District Court of Appeals in Houston concluded that although the jury charge was erroneous, no egregious harm was shown because the jury was correctly instructed elsewhere in the jury charge and the prosecutor and defense attorney correctly argued the law. Id. at 170. A plurality of the court of criminal appeals reversed. Id. at 174. The court of criminal appeals applied the four factors set out in Almanza and stated the Houston appellate court's analysis was erroneous because (1) that court did not consider the appellate presumption that the jury is presumed to have understood and followed the court's charge absent evidence to the contrary; (2) even though the charge elsewhere contained a correct statement of the law, that instruction did not authorize the jury to consider or not consider the evidence obtained from the stop at issue; (3) the issue was obviously contested; (4) there was nothing to indicate the jury did not follow the trial judge's erroneous instruction; and (5) the error was not "cured" by the parties' jury arguments, in light of the fact that the application paragraph at issue was so flawed as to charge the jury on the opposite of what the law actually provides and the issue addressed was hotly contested at trial. Id. at 170-74. Hutch is distinguishable from this case because the application paragraph before us did not charge the jury on the opposite of what the law actually provides. Moreover, viewed as a whole, the charge in this case instructed the jury on proper application of the law in addition to containing the erroneous paragraph. See Almanza, 686 S.W.2d at 171 (first of four factors to be considered in harm analysis is "the entire jury charge"). In an application paragraph preceding the erroneous paragraph, the jury was instructed that guilt as to "possession" was an alternative to guilt as to "possession with intent to deliver," and should be considered only if the jury acquitted appellant of "possession with intent to deliver." Additionally, the charge stated that if the jury had a reasonable doubt as to which of those two offenses appellant was guilty, it "must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of possession." There is nothing in the record that indicates the jury followed only the erroneous portion of the charge. See Dinkins v. State, 894 S.W.2d 330, 339-40 (Tex. Crim. App. 1995) (in reviewing charge for alleged error, court must examine charge as a whole rather than as series of isolated and unrelated statements); Thomas v. State, 599 S.W.2d 812, 814 (Tex. Crim. App. 1980) (although portion of application paragraph in charge was erroneous, charge read as a whole did not present fundamental error). With respect to the second Almanza factor to be considered, the "state of the evidence," we find no evidence in the record suggesting appellant possessed the cocaine at issue, but lacked the intent to deliver. As to the third Almanza factor, "arguments of counsel," both sides stated in closing argument that each element of an offense must be found in order to reach a verdict of guilty. Finally, with respect to the fourth Almanza factor, the parties do not identify "any other relevant information in the record," and we find none. Based on the record and the foregoing analysis, we conclude the error at issue is not so egregious that appellant was denied a fair and impartial trial. See Barrios, 283 S.W.3d at 350. Therefore, we decide against appellant on his third issue.