Opinion
No. 05-07-00973-CR
Opinion Filed February 13, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81428-06.
Before Justices WRIGHT, O'NEILL, and LANG. Opinion By Justice O'NEILL.
MEMORANDUM OPINION
Appellant Javon Unique Elmore appeals his conviction for delivery of a controlled substance, more than four grams, but less than 200 grams. After a jury found appellant guilty of the offense, it assessed punishment at twenty years' confinement. In three points of error, appellant generally contends (1) the evidence is legally and factually insufficient to support his conviction, and (2) the trial court erred in instructing the jury on the law of the parties. For the following reasons, we affirm the trial court's judgment. In January 2006, a confidential informant contacted Detective Chris Jones to tell him he could purchase cocaine from a person he knew as "Floyd," who Jones later learned was appellant. Jones agreed to pay the CI to set up the buy. Before the transaction, Jones met the CI near the McDonald's where the CI was to meet appellant. Jones searched the CI to ensure he had no drugs on him and was not armed. Jones gave the CI $300 to purchase seven grams of cocaine. Jones also wired the CI so police could hear any conversation between the CI and appellant. The CI then walked to the McDonald's parking lot. When the CI reached the McDonald's, he walked up to appellant's car. Appellant was in the driver's seat and a woman, who police later learned was the CI's girlfriend, was in the passenger seat. The CI spoke briefly to appellant and then got inside the back of appellant's car. The CI remained in the car for a brief period of time, then exited the car, and walked back to where he had met Jones. The CI gave Jones a clear plastic baggie containing 4.45 grams of cocaine. Police videotaped the transaction, but the audiotape from the wire on the CI malfunctioned and police were unable to obtain an audio recording of what appellant said to the CI. After the transaction, appellant and the woman sat in the car for several minutes. When she finally exited the car, appellant drove away. Police stopped appellant for a traffic offense so they could obtain his identity, but they did not arrest him at that time in an attempt to protect the CI's identity. In its jury charge, the trial court instructed the jury it could find appellant guilty either as a principal or a party to the offense. The jury found appellant guilty. This appeal followed. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. 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). The jury, as trier of fact, is the exclusive judge of the witnesses's 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.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. Because the jury was charged on the law of parties, it could have found appellant guilty if either he personally committed the offense or if his female passenger committed the offense and appellant (1) intended to promote or assist the commission of the offense, and (2) encouraged, aided or attempted to aid commission of offense. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). Circumstantial evidence may be used to prove someone is a party to an offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). Although presence at the scene of an offense alone is insufficient to support a conviction, it can be a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. See id. In determining whether the accused was a party, it is proper to look to events occurring before, during, and after the commission of the offense, and to rely on actions of the defendant which show an understanding and common design to do the prohibited act. Id. According to appellant, the State proved only that he sat in the car during a drug transaction and that is insufficient to establish his guilt as a principal or a party. We disagree. After reviewing the evidence in the light most favorable to the jury's verdict, we conclude the evidence is legally sufficient to show appellant committed the offense either as a principal or a party. Appellant drove the vehicle to the McDonald's where the drug transaction occurred. Although appellant was in the parking lot of the restaurant for several minutes, neither he nor his female passenger appeared to eat anything. The CI spoke to appellant before entering the vehicle and appellant helped the CI to get into the back seat of the two-door vehicle by moving his seat up. After the transaction, appellant and the female talked amicably for several minutes before she exited the vehicle. Even if the jury was unable to conclude beyond a reasonable doubt that appellant personally delivered the narcotics to the CI, at a minimum, it could have concluded that appellant assisted his female passenger to commit the offense by acting as the driver and providing a location for the transaction. The jury could also infer from appellant's demeanor, as seen on the videotape, before, during and after the offense that he was a willing participant. We resolve the first issue against appellant. Appellant also contends the evidence is factually insufficient to support the jury's verdict. He relies on the State's failure to present evidence of a hand-to-hand transfer between him and the CI, evidence the CI was paid for his services, and the State's failure to present evidence that he had money from the transaction after the transaction. We have reviewed all the evidence in a neutral light. Appellant does not direct this Court to any evidence contrary to the verdict. To the extent he has directed us to circumstances that go to the weight of the State's case, we cannot conclude those circumstances are sufficient to undermine our confidence in the fact finder's verdict. We resolve the second issue against appellant. In the third issue, appellant contends the trial court erred in charging the jury on the law of the parties. According to appellant, the evidence does not raise the law of the parties because there is no evidence he encouraged, aided, solicited, directed or attempted to aid the commission of the offense. We have previously concluded the jury could have found appellant guilty as a party. Having done so, we have necessarily concluded the law of the parties was raised by the evidence. We resolve the third issue against appellant. We affirm the trial court's judgment.