No. 05-08-01643-CR
Opinion Filed September 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-53920-LN.
Before Justices O'NEILL, FRANCIS, and LANG.
Opinion By Justice O'NEILL.
A jury convicted Michael Dwayne Moore of delivery of cocaine in an amount of less than one gram. Pursuant to a plea agreement during the punishment phase, the trial court assessed punishment at two years' confinement in a state jail facility, probated for five years, and a $1500 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction and the jury's finding that he was guilty as a party to the offense. We affirm.
The trial court's certification of appellant's right of appeal recites this was a "plea-bargain case, but matters were raised by written motion filed and ruled on before trial, and not withdrawn or waived, and defendant has the right of appeal." However, appellant's issues do not fall within the scope of the trial court's permission to appeal. Nonetheless, we conclude we have jurisdiction to address appellant's complaints because the record shows appellant pleaded not guilty before a jury. See Tex. R. App. P. 25.2(a)(2).
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant, acting alone or as a party with T. Jones, intentionally or knowingly delivered cocaine in an amount of less than one gram to D. Avalos. See Tex. Health Safety Code Ann. § 481.112(a), (b) (Vernon 2003). The jury was instructed to find appellant either guilty as a party to the offense or not guilty. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See id. § 7.02(a)(2). 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.). Evidence Presented
The jury heard testimony from three undercover narcotics officers who investigate citizen complaints about drug activity and who make undercover drug buys. Officer Daniel Avalos testified that on June 20, 2005, he was working undercover in the 9800 block of Brockbank Street. Two other officers provided surveillance with Avalos. As Avalos drove slowly down the street in a pickup truck at about 4:30 p.m., appellant "flagged" him down. Avalos drove close to appellant, who approached the open driver's side window and asked Avalos what he needed. Avalos said, "[I] need a fat 60." Avalos explained the phrase was common street lingo for sixty dollars worth of crack cocaine. Appellant replied, "[O]kay," then he signed to another man who had been standing nearby. The second man, later identified as T. Jones, approached appellant. Appellant said, "[H]ey, whatever he needs, just take care of him." Jones asked Avalos what he needed. Avalos repeated that he needed a "fat 60." While Jones directed Avalos to pull into a parking space in front of a nearly apartment complex, appellant walked across the street and "observed, [he] acted like a lookout." Appellant watched Avalos and the street while Jones went into the complex. Jones returned about two minutes later and handed Avalos two rocks. Later analysis showed the rocks contained 0.58 grams of cocaine. Avalos handed Jones sixty dollars, then drove from the area. Avalos notified the cover officers that he had the cocaine and an arrest could be made. Uniformed patrol officers were notified, and appellant and Jones were arrested. Avalos drove back by the location to ensure the officers had arrested the right individuals. Avalos testified it was common practice for drug dealers to work together with one doing the hand-to-hand transaction and the other looking out for the police. Sergeant Willie Ford and Detective Stan Forney provided undercover coverage and security to Avalos. They were also driving an undercover vehicle. Ford maintained visual contact on Avalos at all times while Forney monitored communications with Avalos. Ford testified he parked on the east side of the street in the 9800 block of Brockbank and faced west. He saw Avalos drive a pickup truck slowly down the street. Appellant, who stood across the street from Avalos, made a head motion to get Avalos's attention, then walked to the driver's side of Avalos's truck. After a few seconds, Jones, who had been standing nearby, also approached the truck. Ford observed Jones leave the truck and disappear into an apartment complex. Appellant walked across the street from the truck and stood there. After a few minutes, Jones came out of the complex and returned to the truck. A few seconds later, Avalos drove away from the area. Avalos notified Ford and Forney that he had purchased some drugs. Ford testified that after Avalos drove away, both appellant and Jones stayed on the street in front of the apartment complex. Forney testified he radioed for uniformed patrol officers to detain appellant and Jones after Avalos notified them that he had purchased drugs. Forney testified that because his task was to monitor Avalos on audio equipment and monitor the police radio, he did not focus visually on Avalos or appellant. Forney heard the negotiations for a "fat 60" through an open line on Avalos's cell phone. Forney testified it is common for several people to conduct a drug transaction because often there are specific individuals who look out for the police while other individuals actually get the drugs and give them to the buyers. Appellant did not present any evidence during the guilt/innocence phase of the trial. Discussion
Appellant contends the evidence is legally and factually insufficient to support his conviction because (1) Jones was the person who actually delivered the cocaine to Avalos, (2) appellant did not receive any money from the transaction and did not handle the drugs, and (3) appellant walked away from the transaction, but was not acting as a lookout for the transaction. The State responds that the evidence is legally and factually sufficient to support the jury's finding that appellant intended to aid or assist the commission of the offense. The jury heard evidence that appellant initiated contact with Avalos when he motioned to Avalos and then asked Avalos what he needed. After Avalos asked for drugs, appellant motioned to Jones to approach them. Appellant told Jones to give Avalos whatever he wanted. After giving Jones that instruction, appellant crossed the street and continued to watch Avalos and the street. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction and the jury's finding that he acted as a party in the commission of the offense. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509; Michel, 834 S.W.2d at 67. We resolve appellant's two issues against him. We affirm the trial court's judgment.