Summary
concluding that appellant was not entitled to possession instruction because there was no evidence indicating that the cocaine possessed was related to the delivery offense as charged
Summary of this case from Hernandez v. StateOpinion
NO. 01-15-00272-CR
02-11-2016
HUGO ADOLFO ALANIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1457961
MEMORANDUM OPINION
Hugo Adolfo Alanis was indicted and tried before a jury for the offense of delivery of cocaine, a controlled substance, weighing at least 400 grams. The jury found Alanis guilty of the charged offense. Alanis stipulated to a prior felony conviction and the trial court assessed a sentence of 15 years' confinement.
On appeal, Alanis contends that the trial court erred in refusing his request that the jury be charged on possession of less than one gram of cocaine as a lesser-included offense. Finding no error, we affirm.
Background
Alanis lived at and managed a small private horse ranch in southern Harris County. The Narcotics Division of the Pasadena Police Department had been targeting Alanis for his suspected involvement in drug trafficking. Detective A. Alvarez, working undercover as a prospective buyer, was introduced to Alanis by a confidential informant in June 2013. Detective Alvarez understood that Alanis was a middleman, that is, someone who connects potential buyers to people with large quantities of illegal drugs.
Over the next several months, Alvarez attempted to buy 10 to 15 kilograms of cocaine from Alanis. Alanis, however, would change the transaction to avoid open areas and impose other conditions in a way that led Alvarez to suspect that Alanis knew how narcotics officers worked, was wary of them, and had experience in taking the precautions necessary to avoid being caught.
In February 2014, the confidential informant called Alvarez and told him that Alanis had up to 40 kilograms of cocaine available for sale. Alvarez contacted Alanis and said that he wanted to buy 25 kilos, but complained that Alanis never completed any of his proposed deals with Alvarez. Alanis assured Alvarez that he was ready to complete a transaction this time. Alvarez insisted that Alanis bring the owner of the cocaine to the transaction to show that he was serious about brokering a deal.
The Department orchestrated the sting operation several days later. Alvarez arranged to buy 25 kilos from Alanis at a price of $28,000 per kilo and made plans to meet Alanis at about ten o'clock the morning of February 12 at a grocery store parking lot near 1-45 and Edgebrook Drive in Houston. That morning, Detectives Rebollar and Cooper of the Pasadena Police Department went to the ranch to conduct surveillance on persons entering and leaving. Alvarez, accompanied by Agent A. Ferrer of the Houston Police Department, who occasionally worked undercover with Alvarez, went to the parking lot. Detective C. Barth from the Pasadena Police Department provided backup nearby.
Andres Sandoval-Rodriguez was sitting in a gray car with Mexican plates in the parking lot near the meeting location. Alanis went over to Sandoval-Rodriguez and brought him to meet Alvarez. Alvarez told Sandoval-Rodriguez that he would go with Alanis to the ranch to complete the deal if Sandoval-Rodriguez showed him a kilogram brick of cocaine to assure Alvarez that he intended to go through with the transaction.
Sandoval-Rodriguez and Alanis got into the gray car, left the parking lot, and returned to the ranch. Sandoval-Rodriguez left Alanis at the ranch and, a short time later, returned to the grocery store lot and pulled up next to the driver's side of Alvarez's car. Alvarez walked up to Sandoval-Rodriguez's car and looked through the open window. Sandoval-Rodriguez reached into the compartment in the driver's side door panel, pulled out a white bag, and showed it to Alvarez. Alvarez recognized it as a kilogram of cocaine from the way it was wrapped and its strong, distinctive smell. Alvarez secretly signaled over the radio that Sandoval-Rodriguez had the cocaine. At this point, Alvarez and Ferrer had completed their involvement in the operation.
Officers apprehended Sandoval-Rodriguez before he arrived at the ranch. After being notified that Sandoval-Rodriguez and the brick of cocaine had been taken into custody, Detective Cooper, accompanied by Detective Rebollar and two other detectives, moved in to secure the ranch. Alanis noticed the officers approaching. He first started to run away, but then complied with the officers' commands to stop and return. Rebollar spoke with Alanis, who consented to a search of his trailer as well as a barn and other horse trailers on the property. Before the officers started the search, Alanis divulged that he had a small amount of cocaine for personal use inside the trailer. He showed the officers a folded dollar bill that contained approximately one gram of a substance that field-tested positive for cocaine.
After the search was completed, Alanis was taken to the city jail for an interview. After receiving his Miranda warnings, Alanis admitted to being the "middleman of a narcotics transfer," but not to his involvement in the transaction between Sandoval-Rodriguez and Alvarez.
Charge Error
In his sole issue on appeal, Alanis contends that the trial court erred in refusing his request to instruct the jury on possession of a controlled substance as a lesser-included offense.
I. Standard of Review
In analyzing a jury-charge issue, we first must decide if error exists. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh'g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd); see Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (explaining that preservation of charge error does not become issue until court determines that harm exists). When, as here, the appellant has properly preserved the claimed error by a timely objection to the charge, the conviction will require reversal "as long as the error is not harmless." Almanza, 686 S.W.2d at 171. The Court of Criminal Appeals has interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); see Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000) (reversal required if error "was calculated to injure the rights of the defendant"—that is, that defendant suffered "some harm").
In deciding whether appellant suffered some harm, we consider: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) counsel's argument; and (4) the whole record. Abdnor v. State, 871 S.W.2d 726, 733 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171. The "some harm" test does not mandate reversal on a showing of possible harm—it requires that the appellant establish actual harm. Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999). The appellate court reviews the evidence and any part of the record as a whole that illuminates "the actual, not just theoretical, harm to the accused." Id.; Almanza, 686 S.W.2d at 174.
II. Refusal to Give Instruction on Simple Possession as a Lesser-Included Offense
A. Applicable law
A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser offense is a lesser-included offense of the charged offense and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2014); Hall v. State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007).
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Because article 37.09 defines a lesser-included offense in terms of the offense charged and the facts of the case, the determination of whether an offense is a lesser included offense must be settled on a case-by-case basis. Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004). Under the two-pronged test, we first determine whether the indictment for the greater-inclusive offense either: "(1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced." Id. at 273. This is a question of law and its resolution does not depend on the evidence to be produced at trial. Hall, 225 S.W.3d at 535 (explaining application of TEX. CODE CRIM. PROC. ANN. art. 37.09).
If the first prong is satisfied, we then consider whether the evidence in the record supports giving the lesser-included offense instruction. Watson, 306 S.W.3d at 263. A defendant is entitled to a requested instruction on a lesser-included offense when some evidence in the record would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Hall, 225 S.W.3d at 536 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). "The credibility of the evidence, and whether it conflicts with other evidence, must not be considered in deciding whether the charge on the lesser-included offense should be given." Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.—Houston [14th Dist.] 2007, pet. dism'd) (citing Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)). It is not enough, however, that the jury may disbelieve crucial evidence pertaining to the greater offense. Hall, 225 S.W.3d at 536; Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
If we find error and the appellant properly objected to the jury charge, we employ the "some harm" analysis. See Ngo, 175 S.W.3d at 743.
B. Analysis
The indictment against Alanis charges him with delivery of at least 400 grams of cocaine to Alvarez through one of the following manners and means:
(1) delivery by actual transfer to Alvarez;
(2) delivery by constructive transfer to Alvarez; and
(3) knowing delivery by offering to sell cocaine to Alvarez. The trial court charged the jury on the delivery issue under the three alternate manners and means and, at the State's request, it also submitted a question on possession with intent to deliver at least 400 grams of cocaine based solely on Alanis's status as a party to the transaction with Sandoval-Rodriguez. In requesting submission of simple possession as a lesser-included offense, defense counsel contended that the issue was "raised by the less than a gram of cocaine that was located in the trailer and that's been put into evidence by the State."
This contention does not support submission of the possession question in this case. Although possession may be a lesser-included offense of delivery in the abstract, no evidence indicated that the gram of cocaine that Alanis showed the officers in connection with their search of his trailer was connected to the transaction involving Alvarez. The manners and means alleged in the indictment limit the charged offense to Alanis's dealings with Alvarez, and the facts adduced at trial show that Alvarez's participation ended before the officers arrived at the ranch and obtained Alanis's consent to search the trailer.
In Campbell v. State, the Court of Criminal Appeals rejected a contention similar to Alanis's. There, Campbell, the appellant, was a passenger in a car in which a police officer discovered 8.64 grams of methamphetamine in a backpack lying on the backseat. 149 S.W.3d. at 150-51. At the time, Campbell claimed that the backpack and the methamphetamine were his, but he denied their ownership at trial. Id. at 151. During his trial testimony, however, he admitted to possessing less than one gram of methamphetamine in a toolbox in his own vehicle, which the police had not located. Id. Based on that testimony, Campbell asked the trial court to submit an instruction to the jury on the lesser-included offense of possession of less than one gram of methamphetamine. Id.
The Court upheld the trial court's refusal to submit the requested instruction because no evidence linked the methamphetamine found in the car with the stash of narcotics that Campbell admitted to having in his toolbox. Id. The Court observed that, considering statutory elements and surrounding facts and circumstances, the facts revealed "that the alleged possession to which Appellant confessed is a separate offense, unrelated to the crime for which he was charged." Id. at 155.
Similarly, in this case, the allegations in the indictment are linked to the cocaine that Sandoval-Rodriguez showed to Alvarez in the grocery store parking lot. The officers who conducted the search of the ranch believed that they might find another 24 kilos of cocaine meant for the proposed sale to Alvarez, but they did not. Alvarez's admission that the cocaine found in his trailer was for personal use excludes the possibility that it was intended for the transaction with Alvarez.
The evidence used by Alanis to argue for submission of a lesser-included offense differs from Campbell in two respects: (1) Alanis's confession to possessing the small amount of cocaine occurred during the search, whereas Campbell's confession occurred during trial, and (2) the State presented evidence of the cocaine retrieved from Alanis's trailer during his trial, but the State did not offer any evidence relating to Campbell's toolbox stash in that trial. See id. at 155. These differences, however, do not alter our conclusion that Campbell dictates the outcome in this case. The State's evidence did not attempt to link Alanis's personal possession of the gram of cocaine to the offense charged. We therefore hold that the trial court did not err in refusing to submit Alanis's requested instruction on simple possession as a lesser-included offense.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Jennings, Keyes, and Bland. Do not publish. TEX. R. APP. P. 47.2(b).