Manuel Muniz v. State

IN THE TENTH COURT OF APPEALS No. 10-08-00175-CR MANUEL MUNIZ, Appellant v. The State of Texas, Appellee From the 220th District Court Bosque County, Texas Trial Court No. 06-11-14045-BCCR MEMORANDUM Opinion Manuel Muniz pleaded guilty to aggravated sexual assault of a child and, pursuant to a plea agreement, the court deferred an adjudication of guilt and placed Muniz on community supervision for ten years. Eleven months later, the court adjudicated Muniz’s guilt for violation of his community supervision and sentenced him to fifteen years’ imprisonment. Muniz’s attorney has filed an Anders brief. Although he was given the opportunity, Muniz has not filed a pro se brief or response. We will affirm. Counsel’s brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gearhart v. State, 122 S.W.3d 459, 464 (Tex. App.—Corpus Christi 2003, pet. ref’d); Sowels v. State, 45 S.W.3d 690, 691 (Tex. App.—Waco 2001, no pet.), overruled on other grounds by Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006). After an independent review of the record, we agree with counsel’s conclusion. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); accord Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex. App.—Waco 2006, no pet.). The motion to proceed with an adjudication of Muniz’s guilt included two factual allegations: (1) that Muniz committed the offense of driving while intoxicated; and (2) that he committed the offense of obstruction or retaliation. The motion alleges that Muniz’s conduct violated two conditions of his community supervision: (1) to neither commit nor be convicted of any offense; and (2) to abstain from the use of alcohol. After a hearing, the court found the allegations to be true. The officer who arrested Muniz for DWI testified to the elements of this offense. Muniz admitted to this officer that he had consumed “six or seven beers.” Muniz became hostile after his arrest and, according to the officer, “was mouthing to us the whole way” to the jail. At the jail, Muniz stated “several times that he was going to blow [the officer’s] car up and kill [his] family.” The State need prove the allegations of a motion to revoke community supervision (or to proceed with an adjudication of guilty) by only a preponderance of the evidence. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999); Davis v. State, 181 S.W.3d 426, 427 (Tex. App.—Waco 2005, no pet.); see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). Here, the State presented sufficient evidence to sustain this burden. Therefore, the court did not abuse its discretion by proceeding with an adjudication of Muniz’s guilt. Muniz’s sentence of fifteen years is well within the statutory punishment range. Our independent review of the record does not reveal any arguable grounds for reversal. See Bledsoe, 178 S.W.3d at 826-27; Villanueva, 209 S.W.3d at 242-43. Accordingly, we affirm the judgment. Pursuant to Rule of Appellate Procedure 48.4, counsel must send Muniz a copy of our decision by certified mail, return receipt requested, at Muniz’s last known address. Tex. R. App. P. 48.4. Counsel must also notify Muniz of his right to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion to withdraw, effective upon counsel’s compliance with the aforementioned notification requirement as evidenced by “a letter [to this Court] certifying his compliance.” See Tex. R. App. P. 48.4. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed February 4, 2009 Do not publish [CR25] InlineFloats ) { document.write( '' ); document.write( WPFootnote1 ); document.write( ' Close' ); document.write( '' ); } and assessed his punishment at eighty-five years in prison and a $15,000 fine. In two points, Teague apparently contends that there was insufficient evidence that he possessed at least 200 grams of cocaine [with intent to deliver]. We will affirm. Teague was the driver of a van traveling northbound on Interstate 45 when it was stopped by a DPS trooper on June 13, 1991, for a defective turn signal. Teague did not have a driver's license, and he incorrectly identified himself as Darrin Renay Kimble. There were two passengers in the van identified as John Moats, owner of the van, and Jeffery Fitzpatrick. In open view on the floorboard of the van were two guns, a .45 semi-automatic and a 9 mm machine pistol. Ammunition for both guns was found in various places in the van. The trooper also discovered a pill bottle, found to contain a residue of crack cocaine, on the roadway directly below a hole in the floorboard of the van. A small zip-lock bag, normally used to store crack cocaine, was found on the rear captain's chair. The trooper eventually found two bags, containing 215.07 grams of cocaine, behind a panel in the van. John Moats testified for the State during the guilt-innocence phase of the trial that Teague had arranged through a contact in Houston for Moats to buy the cocaine found in the van for $5,200, for which Teague was to receive a small amount of the cocaine. Moats said that Teague, who knew Moats was a drug dealer, had arranged a previous purchase of cocaine for him in Houston because the price was cheaper there than where they lived in Oklahoma. Moats stated that Teague contacted the same woman from whom Moats had purchased cocaine on the previous trip and that, when he gave the woman the money for the cocaine, Teague was present. Moats said that, while he hid the cocaine behind the panel in the van where the trooper found it, Teague went outside the motel room with the woman for about fifteen minutes. To establish unlawful possession of cocaine, the State must prove two elements: (1) appellant exercised care, control, and management over the cocaine; and (2) appellant knew the cocaine was contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Dubry v. State, 582 S.W.2d 841, 843 (Tex.Crim.App. [Panel Op.] 1979). Possession of the cocaine need not be exclusive, and evidence showing that the appellant acted together with another person in jointly possessing the cocaine is sufficient. McGoldrick, 682 S.W.2d at 578. Although "mere" presence by itself is not sufficient, additional evidence that affirmatively links the appellant to the cocaine is sufficient. Dubry, 582 S.W.2d at 843; Damron v. State, 570 S.W.2d 933, 935-36 (Tex.Crim.App. [Panel Op.] 1978). This evidence can be either direct or circumstantial. McGoldrick, 682 S.W.2d at 579. In determining the sufficiency of the evidence that affirmatively links the appellant to the cocaine, accomplice testimony that meets the requirements of article 38.14 of the Texas Code of Criminal Procedure can be used to establish those "affirmative links." De La Rosa v. State, 771 S.W.2d 170, 171 (Tex.App.—Austin 1989, no pet.). Moats' testimony directly links Teague to the cocaine in that: 1.Teague knew Moats was a drug dealer. 2.Teague uses crack cocaine. 3.Teague went to Houston with Moats and arranged for and set up the purchase of the cocaine. 4.Teague was present when it was purchased. 5.Teague expected to be compensated, after returning to Oklahoma, for his participation in the purchase. 6.Teague and Moats engaged in a similar transaction the previous month. Article 38.14 permits a conviction based on accomplice testimony corroborated by other evidence. The corroborating evidence is sufficient if it "tends to connect the defendant with the commission of the offense." Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App. 1988). All the facts and circumstances in evidence may be looked at as furnishing the corroboration necessary. Id. at 126. The corroborating testimony need not directly link the appellant to the offense or be sufficient in itself to establish the appellant's guilt. Id. Here, we find that the following facts and circumstances corroborate Moats' testimony: 1. Teague was driving the van containing the cocaine. 2. There were guns on the floorboard of the van within easy reach of Teague and ammunition scattered throughout the van. 3. A pill bottle containing traces of crack cocaine was found on the roadway directly beneath a hole in the floorboard of the van. 4. The zip-lock bag on the captain's seat in the van. 5. Teague gave an alias to the trooper. 6. Teague stated to the trooper that the three men had traveled all night from Haskell, Oklahoma, to Houston, Texas, to visit his mother and then turned around to go back to Oklahoma the very same morning. 7. The amount of cocaine seized, from which may be inferred the "intent to deliver." Pitts v. State, 731 S.W.2d 687, 692 (Tex.App.—Houston [1st Dist.] 1987, pet. ref'd). 8. A letter from Teague to Moats was found when a search warrant was executed three weeks prior to this trial in which Teague offered to "take the case" if Moats and Fitzpatrick would pay him $15,000 and if he was able to "cop" for no more than ten years. Proof that Teague was at the scene of the offense when it was committed, coupled with the other above circumstances, are sufficient to corroborate Moats' testimony. See Reed, 744 S.W.2d at 127. The standard of review, in both direct and circumstantial evidence cases, on sufficiency of the evidence is whether, "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt". Jackson v. Virginia, 443 U.S. 307, 319 n.12, 99 S.Ct. 2781, 2789 n.12, 61 L.Ed.2d 560 (1979); Garcia v. State, No. 683-90, slip op. at 3 (Tex.Crim.App. June 3, 1992). The jury was instructed on the law of parties and its application to the facts of this case. As to proof that an offense was committed, Moats' admissions at trial and the facts and circumstances surrounding the arrest unequivocally show that Moats possessed, with intent to sell, the cocaine found in the van. In determining whether Teague acted with intent to promote or assist Moats in the commission of this offense, the court may look to events before, during, and after the commission of the offense. See Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim. App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). One way in which the State may prove that a party acted with intent to assist is by the actions of the party that show an understanding and common design to commit the offense. Burdine, 719 S.W.2d at 315. Based on Moats' testimony and the corroborating facts and circumstances, the jury could rationally find beyond a reasonable doubt that Teague was a party to the offense. We overrule both points and affirm the judgment. BOBBY L. CUMMINGS Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed August 5, 1992 Do not publish1