No. 05-05-01536-CR
Opinion Filed April 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-56171-RW. Affirmed.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Sabino Valle Araujo of possession with intent to deliver cocaine in an amount of one gram or more but less than four grams and assessed punishment at two years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Although the judgment shows appellant's last name as Argujo, appellant's true name is Araujo.
Background
Dallas narcotics detectives Larry Littlefield and Scott Shepherd testified that on September 14, 2004, they set up an undercover drug buy at a convenience store in response to citizen complaints about drugs being sold there. They drove an unmarked truck to 2913 Royal Lane at about 4:20 p.m. A man identified as Irineo Camilo flagged them down and asked what they were looking for. Littlefield, who was driving, said he wanted "one hundred of powder," meaning 100 dollars' worth of powdered cocaine. Camilo asked for a cell phone, and the officers handed a phone to Camilo. Camilo dialed a number, spoke in Spanish for a few minutes, then handed the phone back to Shepherd and said there would be a ten-minute wait. Littlefield testified he did not speak Spanish and did not know what Camilo had said on the phone. Camilo said he had to take them to another location. Camilo got into the truck and directed the officers to an apartment complex two blocks away. They parked near a dumpster and waited. After a few a few minutes, a 1993 red Toyota Corolla stopped behind them. Littlefield testified appellant was driving the Toyota, a woman sat in the front passenger seat, and a man sat in the back seat behind appellant. When Camilo saw the Toyota, he said he needed the money. Littlefield handed Camilo five marked $20 bills. Camilo got out of the truck and into the back seat of the Toyota. Littlefield and Shepherd turned around in their seats and watched Camilo go to the Toyota. Littlefield testified he saw Camilo hand appellant the money over appellant's shoulder. Appellant backed the Toyota into a parking space and handed something to Camilo, but Littlefield could not see what the object was. Camilo got out of the Toyota and returned to the truck. Appellant left the parking lot. Littlefield alerted other officers that the transaction had been done and gave them the license plate number of appellant's vehicle. Camilo handed Shepherd a plastic bag that contained a powder substance. Later analysis showed the bag contained 1.05 grams of cocaine. Littlefield gave Camilo a marked $10 bill for a tip. Littlefield testified that when other uniformed officers detained appellant and searched the vehicle, they found three of the marked $20 bills and a cell phone on the driver's side floorboard. Telephone records showed the cell phone found in appellant's vehicle had received calls from the detectives' cell phone at the time of the transaction. Officers also learned the license plate number on the Toyota was registered to a 1991 four-door Chevrolet vehicle. Officers found two marked $20 bills and one marked $10 bill on Camilo, but did not find any drugs, weapons, paraphernalia, or large sums of money on either Camilo or appellant. Shepherd testified that although he did not know what Camilo said on the cell phone because Camilo spoke Spanish, Camilo said in English that the drugs were on the way. Camilo directed Littlefield to drive to a nearby apartment complex and they parked next to a dumpster. Appellant drove up and stopped behind them in a red Toyota Corolla. A woman sat in the front passenger seat and a man sat in the back behind appellant. Shepherd testified that when Camilo got into the back seat of appellant's vehicle, he saw Camilo hand the marked money to appellant. Appellant then backed his vehicle into a parking space and handed something to Camilo. Shepherd could not see what appellant gave to Camilo. Camilo got out of appellant vehicle, walked back to the truck, handed Littlefield a small plastic bag with cocaine in it, and walked away. Shepherd testified that the cell phone found in appellant's vehicle was the phone Camilo had called from Shepherd's phone. Kevin Willis, an undercover narcotics detective, testified he provided surveillance for Littlefield and Shepherd. He observed the officers' truck leave the convenience store and drive to a nearby apartment complex. Willis followed them, but stopped at the front gate of the complex. One of the officers told Willis to follow a 1993 red Toyota Corolla. Willis followed the Toyota and radioed for uniformed officers to stop it. Willis testified he followed the Toyota as soon as it came out of the front gate at the complex, and he did not see any of the occupants make any movements inside the car while he followed it. Dallas police officer Tom Haeker testified he stopped a red 1993 Toyota Corolla that had three occupants. Appellant was in driver's seat, a woman was in front passenger seat, and a man was in back seat behind appellant. Haeker got appellant out of the vehicle first and waited for additional officers. Haeker positioned appellant so that Haeker could watch the other two occupants of the vehicle. None of the occupants made any movements with their hands. After other officers arrived, Haeker arrested appellant and searched the vehicle. Haeker found three $20 bills and a cell phone on the driver's side floorboard. Haeker searched appellant and the other occupants, but none of them had any drugs, weapons, paraphernalia, or large sums of money. Haeker transported appellant to jail. Anthony Gipson, a Dallas narcotics detective, testified it is common for drug dealers to add substances to powder cocaine to make more money. According to Gipson, the street value of 1.05 grams of cocaine is anywhere from $60 to $80, and it would not be uncommon to purchase a gram of cocaine for $100. Gipson testified drug dealers often use others as "front men" who connect buyers to the suppliers. Gipson further testified that with drug trafficking, it is common to use cell phones to make the transaction and then accompany the buyer to another location. The front man often quotes the buyer a higher price than the supplier wants and then skims the difference for himself. Drug dealers also insulate themselves from the actual transaction, and often take license plates from a different vehicle and put them on the vehicles they use to transport the drugs. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed with the intent to deliver cocaine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. § 418.112(a), (c) (Vernon 2003). To do so, the State had to prove appellant exercised care, control, or management over the cocaine and knew it was contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The jury was instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because Camilo was the person who made the drug transaction and handed the cocaine to the officers. Appellant asserts there was no evidence he gave the cocaine to Camilo in exchange for money, two other people were in the car with appellant and either could have given Camilo the drugs, and there were no weapons, other drugs or money, or paraphernalia on appellant when he was arrested. The State responds that the evidence is legally and factually sufficient to show appellant was a party to the delivery of the cocaine. Camilo flagged down Littlefield and Shepherd, then used Shepherd's cell phone to call someone to bring the drugs. After Camilo directed Littlefield and Shepherd to a nearby apartment complex to await delivery of the drugs, appellant arrived a few minutes later. Appellant was driving a 1993 Toyota Corolla whose license plate was registered to a 1991 four-door Chevrolet. Although there were two other occupants with appellant in the car, both Littlefield and Shepherd saw Camilo give appellant the marked money and saw appellant hand something back to Camilo. Camilo immediately got out of appellant's car, returned to the officers' vehicle, and handed Shepherd a bag that contained 1.05 grams of cocaine. The marked money was found on both Camilo and in appellant's vehicle on the driver's side floorboard. The cell phone that had Shepherd's phone number listed was also in appellant's car. The jury was the exclusive judge of the facts provided and of the weight to be given to the testimony, and it was the jury's role to resolve the conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's determination that appellant knowingly or intentionally possessed with intent to deliver cocaine. See Lane, 151 S.W.3d at 191-92; Zuniga, 144 S.W.3d at 484-85. We resolve appellant's issues against him. We affirm the trial court's judgment.