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Sotelo v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 16, 2005
No. 05-04-00583-CR (Tex. App. Mar. 16, 2005)

Opinion

No. 05-04-00583-CR

Opinion issued March 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-34518-VL. Affirmed.

Before Justices MORRIS, FRANCIS, and LANG-MIERS.


OPINION


In this case, a jury convicted Javier Castaneda Sotelo of unlawful possession with intent to deliver methamphetamine in an amount of 400 grams or more. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.

Factual Background

Jesus Gallo, an undercover agent with the Drug Enforcement Administration, posed as a drug buyer and used Saul Horcasitas, a paid confidential informant, to get information about persons selling drugs. Horcasitas told Gallo he knew a man named Carlos who wanted to sell approximately forty pounds of methamphetamine for $3500 per pound. On March 10, 2003, Gallo talked with Carlos by telephone about buying some cocaine. Carlos was to deliver the cocaine to Horcasitas's house the following day. At the appointed time, Carlos told Gallo his source for the cocaine was unable to deliver to Dallas, but that forty pounds of methamphetamine could be delivered instead. On March 17, 2003, Gallo arranged with Carlos to take delivery of forty pounds of methamphetamine at Horcasitas's house the following day. On March 18, DEA agents and task force officers set up surveillance for several blocks around Horcasitas's house. At 1:00 p.m., Gallo saw a white pickup truck park in front of Horcasitas's house. Appellant was driving and a man named Bustos was in the passenger seat. Both men exited the truck and shook hands with Horcasitas, who was in the front yard. The three men talked for several minutes. Appellant and Bustos then got back into the truck and drove to a house located a few blocks away. There, they got into a red four-door car. Bustos was driving the red car, and appellant was in the front passenger seat. Bustos drove back to Horcasitas's house, backed the vehicle into the driveway, got out, and opened the trunk. Appellant exited from the passenger side and stood by the trunk. Gallo and his partner, posing as the buyers, walked toward Bustos. They saw Bustos lean into the trunk and open a green suitcase. Horcasitas stood next to Bustos. Appellant stood beside the trunk on the passenger side and watched Gallo and the suitcase. As Bustos opened the suitcase to show Gallo the drugs, he said, "I got thirty-four of the forty ordered." Gallo inspected one of the packages while appellant watched. Appellant did not speak. When Gallo said he would take the drugs, Bustos asked for the money. Gallo told Bustos he had arranged with Carlos to see the drugs at Horcasitas's house, then go to a residence in Irving where the money was kept to complete the transaction. They all got into their respective vehicles and drove toward Irving. Horcasitas led the way, Bustos and appellant followed Horcasitas, and Gallo and his partner brought up the rear. Horcasitas turned to merge onto a highway, but Bustos and appellant did not make the turn. Gallo followed Bustos and appellant. Gallo radioed to other agents to stop Bustos and appellant. The agents surrounded the red car and forced it to stop. The officers arrested appellant and Bustos and confiscated the green suitcase. Later analysis showed the suitcase contained thirty-four packages of methamphetamine that totaled 14,640 grams. Gallo testified he believed Bustos was in charge of handling the negotiations for the drug transaction. Appellant appeared to be conducting security and acting as Bustos's bodyguard. Gallo testified appellant talked on a cell phone from the time they left Horcasitas's house until appellant was arrested. An officer pulled the phone from appellant's hands because appellant continued talking on the cell phone as he was being arrested. The officers found three different cell phones in the red car, each containing Carlos's number. Saul Horcasitas, the paid confidential informant, testified that both appellant and Bustos had been to his house on four different occasions between March 6 and March 18, 2003. They always came to his house together, and he discussed the methamphetamine with them both. Horcasitas testified that on March 18, appellant and Bustos came to Horcasitas's house in a white pickup truck. They told Horcasitas they would bring the drugs in ten minutes but wanted to make sure everything was fine. Horcasitas assured them everything was okay. Appellant and Bustos left, but returned a few minutes later driving a red four-door car. They showed Horcasitas and Gallo the drugs in the trunk of the car. They then followed Horcasitas as he was supposedly leading them to a house in Irving to exchange money for the drugs. When appellant and Bustos failed to follow him onto the highway, Horcasitas continued driving and went home. Bustos testified that three months before March 2003, he had met Horcasitas at the home of a man named Lobo, who was the drug supplier. Bustos and Lobo had been to Horcasitas's house two or three times. On March 18, appellant was already at Lobo's house when Bustos arrived to get the drugs to deliver for Lobo. Appellant drove Bustos to Horcasitas's house. Once there, both appellant and Bustos asked if everything was clear for the drug transaction. Horcasitas said everything was fine, so appellant drove Bustos back to Lobo's house, which was a few blocks away. Lobo put the suitcase into the trunk of the red car. Lobo instructed Bustos to get the money for the drugs. For this, Bustos would be paid $4500. Lobo told appellant to go with Bustos. Bustos testified he believed appellant was there on behalf of Lobo to assist in the drug transaction and to help Bustos count the money, which would be about $119,000. Bustos admitted he had previously told the prosecutor that appellant had nothing to do with the transaction. Appellant testified in his defense. He claimed he met Lobo through a friend when he lived in an apartment in Irving. Appellant did not recall the name or address of the apartment complex. Appellant, who testified he worked in construction, claimed he had sold Lobo some lumber, but Lobo had not paid him. On March 18, 2003, Lobo called appellant and said he was going to pay appellant the money he owed him, which was approximately $900. When appellant arrived at Lobo's house, he saw Bustos in the front yard. According to appellant, Lobo said that his ex-wife was going to pay appellant because she had taken part of the lumber. Appellant drove Lobo to the ex-wife's house, but appellant remained in the truck. While waiting, appellant saw Bustos drive up in a red car. Lobo asked Bustos if he had gone to where he was supposed to go. Bustos said no, then asked appellant to give him a ride to a nearby house. Appellant then drove Bustos to Horcasitas's house, where Bustos and Horcasitas talked. Appellant claimed this was the first time he had been to Horcasitas's house. After a few minutes, appellant drove Bustos back to Lobo's house. Appellant testified that he got into the red car with Bustos because Lobo told appellant to accompany Bustos to pick up some money so he could be paid the money Lobo owed him. Appellant claimed that he only saw six packages of methamphetamine when Bustos opened the trunk and that he knew nothing about the transaction. Appellant stated that no one asked him to be a bodyguard or a lookout and that he never overheard anyone talking about drugs.

Discussion

In two issues, appellant complains the evidence is legally and factually insufficient to show he participated in the drug transaction. Appellant argues he was merely present at the scene of the drug transaction and Bustos's testimony shows he was not a part of the transaction. Appellant asserts he did not know Horcasitas, he believed he was going to the location to be paid for lumber he had sold several months earlier, and he merely followed Lobo's instructions so he could be paid for the lumber. 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). 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). 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.). In this case, the State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed with the intent to deliver methamphetamine in an amount of 400 grams or more. See Tex. Health Safety Code Ann. § 481.112(a), (f) (Vernon 2003). To do so, the State had to prove appellant exercised care, control, or management over the methamphetamine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). A person is criminally responsible as a party to an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit 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.). At trial, there was conflicting evidence presented concerning appellant's guilt. Supporting the conviction, Horcasitas testified he had discussed the drug transaction with appellant on four different occasions before the date the drugs were to be delivered. According to Horcasitas, on the date of the transaction, both appellant and Bustos asked if the deal was still on and said they would be back in ten minutes with the drugs. Bustos testified that appellant knew about the drugs in the trunk of the red car and that appellant had assisted in the drug transaction by acting on behalf of Lobo, the supplier. Gallo testified appellant drove Bustos to Horcasitas's house, drove Bustos back to the house where the red car was parked, and accompanied Bustos in the red car to complete the drug transaction. Further, appellant appeared to be the lookout or security because he watched and said nothing. In support of his defense, appellant testified he was not involved in the drug transaction and that he only accompanied Bustos in the red car because Lobo told him to go with Bustos to pick up some money so appellant could be paid for lumber he had previously sold Lobo. He also points to testimony showing Bustos previously denied that appellant was involved in the drug transaction and a claim made by Bustos's counsel that he rejected a plea offer because he would not implicate appellant in the crime. The statement of Bustos's counsel was not in evidence before the jury. Moreover, 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 any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.2d at 717. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We resolve appellant's two issues against him and affirm the trial court's judgment.


Summaries of

Sotelo v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 16, 2005
No. 05-04-00583-CR (Tex. App. Mar. 16, 2005)
Case details for

Sotelo v. State

Case Details

Full title:JAVIER CASTANEDA SOTELO, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 16, 2005

Citations

No. 05-04-00583-CR (Tex. App. Mar. 16, 2005)