Jose Benjamin Ortiz v. State

NUMBERS 13-01-374-CR, 13-01-375-CR AND 13-01-376-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG JOSE BENJAMIN ORTIZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 197th District Court of Cameron County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Rodriguez and Garza Opinion by Chief Justice ValdezThis opinion consolidates the decision of the Court in three related criminal appeals. Appellant, Jose Benjamin Ortiz, was convicted of possession of a controlled substance and sentenced to ten years imprisonment. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003). His sentence was suspended and he was placed on probation for ten years and fined $10,000. In appeal number 13-01-00376-CR, appellant contends the evidence is legally insufficient to support this conviction because his confession was not corroborated by independent evidence. Appellant was also charged with intent to deliver a controlled substance (cocaine) on two other occasions. Appellant filed written special verified pleas of double jeopardy in both cases that were ruled on before trial, alleging that he was already punished for these offenses in his conviction which is the subject of appeal number 13-01-00376-CR. The pleas were denied and appellant pleaded no contest. The trial court sentenced appellant to ten years imprisonment for each offense, but suspended the sentence and placed appellant on community supervision for ten years in each case. In case numbers 13-01-00374-CR and 13-01-00375-CR, appellant contends these two convictions violate the double jeopardy rule. We affirm. I. Facts and Procedural History On February 8, 2000, Brownsville Police executed a search warrant on the home of Matilde Ortiz after police conducted surveillance and observed high traffic consistent with drug activity, and had a confidential informant purchase cocaine from the residence. Only Matilde Ortiz, appellant’s mother, and two other women were present when police executed the search warrant. Police found rolling paper but no drugs inside the house. The police then conducted a search of a shed outside the home after Officer Rolando Vasquez obtained the keys from Matilde Ortiz. K-9 Officer Troy Arnold and his search dog, D’Jango, searched the shed. D’Jango alerted Officer Arnold to a box on top of a toolbox in the shed, which D’Jango accidently knocked over. Police then found a digital scale, 20.6 grams of cocaine wrapped in a plastic bag, and board games. Matilde Ortiz was arrested for possession of a controlled substance. On June 12, 2000, a hearing was held to revoke Matilde Ortiz’s probation for an unrelated offense based in part on her February 8th arrest. During, this hearing, Matilde Ortiz’s attorney called appellant to the stand to testify as to who owned the cocaine. Prior to appellant’s testimony, Judge Menton Murray advised appellant that he was not named in the indictment of Matilde Ortiz for possession of cocaine and that he had the right against self-incrimination. Appellant then testified under oath that the cocaine was his. He specified that he wrapped the cocaine in a plastic bag and placed it in a chinese checkers box inside the shed. The transcripts from this hearing were admitted into evidence and read to the jury. A jury then found appellant guilty of possession of cocaine. In the punishment phase of his trial, the State introduced evidence of two extraneous offenses. The first extraneous offense, which is the subject of appeal number 13-01-00374-CR, occurred on August 9, 2000 when appellant was arrested for possession of cocaine after he was stopped for reckless driving. During the pat-down, police discovered eleven plastic bags of cocaine and charged him with possession of a controlled substance. The second extraneous offense, which is the subject of appeal 13-01-00375-CR, occurred on September 13, 2000. Police executed a search warrant on a residence in Brownsville, Texas where appellant and three others were arrested for selling drugs including cocaine. II. Discussion A. Corpus Delicti In appeal number 13-01-00376-CR, appellant contends the evidence is legally insufficient to support his conviction because the corpus delicti rule requires independent evidence apart from his extrajudicial confession to show the crime he confessed to was actually committed. Specifically, appellant argues the evidence is legally insufficient because the State only offered proof that cocaine was found on the floor in the shed rather than in the chinese checkers box, where he had actually confessed to placing it. 1. Standard of Review We review the legal sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, 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); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). Sufficiency of the evidence is measured by a hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State’s burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Chavero v. State, 36 S.W.3d 688, 694 (Tex. App.–Corpus Christi 2001, no pet.). Inconsistencies in the testimony are resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In determining whether the evidence is legally sufficient, we consider all the evidence, whether rightly or wrongly submitted. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). 2. Analysis The indictment charged appellant intentionally or knowingly possessed more than four but less than 200 grams of a controlled substance, namely cocaine. Therefore, the State had to show that the appellant: (1) exercised actual care, custody, control, or management of the contraband; and (2) knew the matter possessed was contraband. See Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.–Corpus Christi 2002, no pet.) (stating where theory of prosecution is possession of controlled substance, evidence must show accused exercised control and had knowledge of controlled substance). “The corpus delicti of a crime–any crime–simply consists of the fact that the crime in question has been committed by someone.” Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993). The corpus delicti rule provides that no criminal conviction can be based on an accused’s extrajudicial confession unless the confession is corroborated by independent evidence tending to establish the corpus delicti. Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002); Fisher, 851 S.W.2d at 302. However, the “corroboration of extrajudicial confessions does not apply to a judicial confession, which is one made in the course of a judicial proceeding while testifying as a witness.” Fancher v. State, 319 S.W.2d 707, 708 (1958); see Salazar, 86 S.W.3d at 645 n.18 (stating in-court judicial confessions need not be corroborated). Here, appellant’s confession was given while under oath in a judicial proceeding to revoke Matilde Ortiz’s probation based on the 20.6 grams of cocaine found in the shed of her home. Appellant, after being warned that his statements could incriminate him, confessed to the crime for which his mother was arrested and indicted. Accordingly, we find that his testimony given at his mother’s revocation hearing was a judicial confession that did not require independent corroboration of the corpus delicti. See Fancher, 319 S.W.2d at 708. Further, appellant’s confession affirmatively linked him to the cocaine because it showed that he knew of the cocaine’s existence and exercised control over it. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (finding evidence legally sufficient where evidence showed accused knowingly possessed cocaine). Accordingly, we find the evidence is legally sufficient to support appellant’s conviction. See Cardenas, 30 S.W.3d at 389. Appellant’s legal-sufficiency challenge is overruled. B. Double Jeopardy Appellant contends the double jeopardy provision of the Texas Constitution bars the State from prosecuting him for the offenses committed on August 10, 2000 (appeal number 13-01-00374) and September 13, 2000 (appeal number 13-01-00375) because these subsequent unadjudicated offenses were used during the punishment for his conviction in 13-01-00376-CR in order to increase the sentence for that offense. We disagree. The Texas Constitution states, “[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Tex. Const. art. I, § 14. Double jeopardy provides the accused three protections: (1) it protects the accused against a second prosecution of the same offense after he has been acquitted of that offense; (2) it protects an accused against a second prosecution for the same offense after a conviction of that offense; and (3) it protects the accused from multiple punishments for the same offense. Lester v. State, 824 S.W.2d 775, 777 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). Double jeopardy does not apply when subsequent extraneous offenses are used during the punishment stage for a prior unrelated offense because consideration of subsequent criminal activity does not equate to a trial, conviction, or punishment for the unadjudicated offenses. See Ex Parte Broxton, 888 S.W.2d 23, 28 (Tex. Crim. App. 1994); Davis v. State, 839 S.W.2d 147, 148 (Tex. App.–Beaumont 1992, no pet.); Lester, 824 S.W.2d at 778-79. Here, the State used appellant’s extraneous offenses committed on August 10, 2000 and September 13, 2000 to help the jury assess punishment for his conviction based on his conduct that occurred on February 8, 2000. See Ex Parte Broxton, 888 S.W.2d at 27 (“The underlying rationale . . . is that the sentencer needs to have information about the individual defendant, including his criminal background, in order to make the appropriate sentencing decision–to make the sentence fit the offender.”). The extraneous offenses were not used to punish appellant for those offenses, but rather considered by the jury in determining the appropriate sentence for appellant. See id. We hold appellant was not punished for the two extraneous offenses when he was sentenced for possessing 20.6 grams of cocaine and therefore suffered no double jeopardy violation under the Texas Constitution. See id. at 25-26; Barnes v. State, 839 S.W.2d 118, 122 (Tex. App.–Dallas 1992, no pet.). Appellant’s double jeopardy issues are overruled. III. Conclusion The trial court judgments in all three appeals are affirmed. Rogelio Valdez, Chief Justice Do not publish. TEX. R. APP. P. 47.2 (b) Opinion delivered and filed this 13th day of May, 2004.