Rolando Deleon v. State

NO. 07-01-0420-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 2, 2002 ______________________________ ROLANDO DELEON , Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 339th DISTRICT COURT OF HARRIS COUNTY; NO. 843,703; HON. CAPRICE COSPER, PRESIDING _______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Rolando Deleon, appellant, appeals his conviction for possessing, with the intent to deliver, 200 grams or more of a controlled substance, namely heroin. His sole issues implicate the legal and factual sufficiency of the evidence underlying the jury's verdict of guilty. That is, he argues that he was merely present at the transaction and presence alone was insufficient to warrant conviction. (1) We affirm. Standards of Review The applicable standards of review are well-settled and need not be reiterated. It is sufficient to cite the litigants to Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001) (describing the standard applicable to claims of factual insufficiency) and Clewis v. State, 922 S.W.2d 196 (Tex. Crim. App. 1996) (describing the standard applicable to claims of legal and factual insufficiency). Application of Standard The case involved the sale of black tar heroin to an undercover police officer. Present at the scene were the officer and at least three other males. The officer testified that he was directed by one of the individuals to a truck wherein sat another and appellant. When the officer approached the vehicle, appellant 1) told him that the substance was "in the rear floorboard behind the driver's seat," 2) "pointed at it, turned, looked to the rear floorboard and told [him] it was right there in the back," 3) told him that the contents of the Tupperware container found behind the seat held heroin, 4) "described what the heroin looked like and how much was in the bag," 5) "acknowledged that it was 15 ounces," and 6) "advised that the original . . . heroin packaging was inside the Tupperware container." The foregoing constitutes some evidence upon which a rational jury could conclude beyond reasonable doubt that appellant intentionally or knowingly possessed, with the intent to deliver, a controlled substance or, at the very least, was a party to another's intentional or knowing possession of a controlled substance with intent to deliver. (2) Thus, the evidence is legally sufficient to support a finding of guilty. And, upon comparing that evidence to the entire record, the finding was and is not so contrary to the great weight and preponderance of the evidence to be clearly wrong. Thus, the verdict is also supported by factually sufficient evidence. Accordingly, we overrule appellant's contentions and affirm the judgment. Brian Quinn Justice Do not publish. 1. Appellant does not dispute that the substance in question was heroin, a controlled substance, in an amount of 200 grams or more. Nor does he dispute that a transfer of the substance was about to occur at the time of his arrest. He merely posits that he was not involved in or a party to the occurrence. 2. The jury charge given at the end of the guilt / innocense phase of the trial permitted the jurors to find appellant guilty if he either possessed the drug with the requisite mens rea or was a party to another's intentional or knowing possession of the drug with intent to deliver. See Tex. Pen. Code Ann. §7.02(a)(2) (Vernon 1994) (stating that one is responsible for an offense committed by another if acting with intent to promote or assist the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense). nsel. The State has now filed a Motion to Abate Appeal and Remand for Hearing on Appellant’s Motion for New Trial and Extend Time for Filing Brief. Law and Analysis When an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000). The motion must, however, be supported by affidavit specifically showing the truth of the grounds of attack. Id. However, the affidavit is not required to reflect every component legally required to establish relief but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). In this matter, appellant alleges that appellant’s counsel advised him to abscond. Further, appellant’s motion for new trial includes an affidavit from an individual who allegedly witnessed a conversation between appellant and his counsel discussing the idea of absconding prior to the verdict. If believed, this evidence, which would not be part of the trial court’s record, could provide a basis for the relief requested by a motion for new trial based on ineffective assistance of counsel. Additionally, the State agrees that appellant has alleged matters not determinable from the record that could entitle appellant to a new trial and, subsequently filed its motion to abate and remand for a hearing on the motion for new trial. We agree that appellant’s appeal raises an issue involving factual questions that should be addressed by the trial court. Tex. R. App. P. 44.4. Conclusion Therefore, we now abate and remand this matter to the trial court for further proceedings. On remand the court shall cause notice to be given and conduct a hearing on appellant’s motion for new trial to determine whether appellant was deprived of effective assistance of counsel as alleged in appellant’s motion for new trial filed on May 31, 2007. After conducting the hearing, the trial court shall make and file findings of fact and conclusions of law. The court shall cause to be prepared a supplemental clerk's record and reporter's record of the hearing. The supplemental records shall be filed in this court by April 30, 2008. Accordingly, the State’s motion will also be granted. We will postpone submission of the case and will modify the time to file briefs once the trial court has held the ordered hearing and the supplemental records have been received. Tex. R. App. P. 38.6(d). Per Curiam Do not publish.