Wartel, Charles Sanders v. State

Affirmed and Memorandum Opinion filed August 10, 2004 Affirmed and Memorandum Opinion filed August 10, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00409-CR ____________ CHARLES SANDERS WARTEL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 926,841 M E M O R A N D U M   O P I N I O N Appellant Charles Sanders Wartel appeals his conviction for delivery of a controlled substance, arguing the evidence is legally and factually insufficient to prove appellant delivered cocaine through (1) an actual transfer; (2) a constructive transfer; or (3) an offer to sell. We affirm. I. Factual and Procedural Background On October 8, 2002, Houston Police Department Officer Antonio Gracia was conducting an undercover drug purchase in response to a citizen complaint about narcotics activity in the 8000 block of Gladstone Street. Gracia enlisted the assistance of several uniformed officers in case of arrests and other officers in plain clothing to conduct surveillance from a separate vehicle. Gracia drove to the 8000 block of Gladstone and observed two men, one of whom was appellant, standing near the entrance of a motel. Gracia greeted the men and asked if they had seen a man known as ATeddy-poo.@ Appellant replied that he had not seen Teddy-poo. Gracia testified that he then asked appellant if he had a A20,@ slang for $20=s worth of cocaine. According to Gracia=s testimony, appellant responded that he did not possess the cocaine, but would obtain it. Appellant entered Gracia=s car and directed him to drive to a house at 3711 Bellfort. Gracia parked his car in the driveway of the house and noticed a man, who was later identified as Kenneth Banks, sitting on the patio. Gracia testified that appellant requested money at this point. Gracia gave him $20, and appellant told Gracia to wait. Appellant then left the vehicle and walked behind the house, out of Gracia=s sight. Gracia testified as follows: (1) when appellant returned to Gracia=s vehicle, he appeared nervous and sweaty; (2) appellant=s right hand was closed as if he were about to give something to Gracia; (3) appellant hesitated before handing anything over; (4) appellant then stepped away from Gracia=s vehicle and motioned, by way of moving his hand, for Banks to follow him; (5) Banks, who had been sitting at a table on the patio at the time, stood up and walked over to appellant; (6) Banks and appellant went to the side of the house and out of Gracia=s view; and (7) Banks returned from the side of the house, came to the driver=s side door of Gracia=s vehicle, and handed him what laboratory tests later determined was 0.207 grams of cocaine. Gracia then put the cocaine in his pocket and gave the Abust signal@ to the uniformed police officers who were waiting nearby. Gracia also gave the officers descriptions of Banks and appellant, and then left the premises. The officers arrested Banks and appellant. Gracia returned briefly to confirm the identities of the men who had been arrested. The officers did not recover the $20. The house itself was not searched because the officers did not have a search warrant. Jimmy Cargill, one of the officers who performed surveillance that evening, testified that he observed the following: (1) appellant and Gracia spoke at the motel; (2) appellant got into Gracia=s vehicle; (3) appellant got out of Gracia=s vehicle and walked behind the residence; (4) appellant returned to Gracia=s vehicle and appeared as if he were going to get back in the vehicle; (5) appellant returned to the rear of the residence; and (6) Banks emerged and walked up to Gracia=s vehicle a short period of time after that. Cargill was not privy to what Gracia and appellant said at any point, nor did he witness any transactions between Gracia and appellant or any exchanges between Gracia and Banks. Appellant recounted the events as follows: (1) appellant responded to Officer Gracia at the motel by saying he did not know where Gracia could get a A20,@ but that he might be able to help him find Teddy-poo; (2) appellant got out of Gracia=s vehicle at the house, but did not receive any money from Gracia; (3) appellant only directed Gracia to this house because appellant wanted to visit its owner; (4) upon exiting Gracia=s vehicle, appellant went into the house and began talking to his friend; (5) as appellant approached Gracia=s vehicle to tell him to leave, he saw Gracia talking to a woman; (6) appellant told Gracia that Teddy-poo was not at the house; (7) appellant then returned to the house; (8) appellant came out of the house again and stood outside talking with Banks and another person; and (9) appellant never saw Banks deliver cocaine to Gracia. Appellant was charged by indictment with delivery of a controlled substance. See Tex. Health & Safety Code ' 481.112 (a) (Vernon 2000). A jury found appellant guilty as charged and sentenced him to one-and-a-half years= imprisonment in Texas Department of Criminal Justice, State Jail Division. II. Issues Presented Appellant presents the following issues for appellate review: (1) Is the evidence legally sufficient to prove appellant delivered cocaine through an actual transfer? (2) Is the evidence legally sufficient to prove appellant delivered cocaine through a constructive transfer? (3) Is the evidence legally sufficient to prove appellant delivered cocaine through an offer to sell? (4) Is the evidence factually sufficient to prove appellant delivered cocaine through an actual transfer? (5) Is the evidence factually sufficient to prove appellant delivered cocaine through a constructive transfer? (6) Is the evidence factually sufficient to prove appellant delivered cocaine through an offer to sell? III. Standards of Review In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, C S.W.3d C,C (Tex. Crim. App. Apr. 21, 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at *4. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The elements of the offense of delivery of a controlled substance are: (1) a person, (2) knowingly, (3) delivers, (4) a controlled substance. See Tex. Health & Safety Code ' 481.112(a) (Vernon 2003). There are multiple ways of committing this offense, including: (1) actual transfer; (2) constructive transfer; or (3) by an offer to sell. See Tex. Health & Safety Code ' 481.002(8) (Vernon 2003) (defining delivery). The State may plead all three forms of delivery in the indictment. See Cano v. State, 3 S.W.3d 99, 105 (Tex. App.CCorpus Christi 1999, pet. ref=d). Each of the theories may be submitted alternatively in the jury charge. Id. When a general verdict is returned and the evidence is sufficient to support a finding under any of the alternative methods submitted, no error is shown. Id. In this case, the trial court submitted all three theories of delivery to the jury and the jury returned a general verdict of guilty of delivery of less than one gram of cocaine. Therefore, if the evidence is legally and factually sufficient to support any one of the three alternative theories described, there is no error. See Rodriguez v. State, 970 S.W.2d 66, 69 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). The jury in this case received an instruction on the law of parties.[1] The law of parties may be applied to the offense of delivery of a controlled substance. See Francis v. State, 909 S.W.2d 158, 162 (Tex. App.CHouston [14th Dist.] 1995, no pet.). Under the law of parties, the State must show that the actual transferor committed the offense and that the party, in this case appellant, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person in the commission of the offense. See Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).[2] Circumstantial evidence may be used to prove that one is a party to an offense. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Id. The court may examine the events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which demonstrate an understanding and common design to commit the offense. Id. IV. Analysis and Discussion In his first issue, appellant contends the evidence was legally insufficient to prove he delivered cocaine by an actual transfer to Officer Gracia because the officer did not see or hear appellant solicit, encourage, direct, aid or attempt to aid Banks with the delivery nor was appellant present when the transaction between Banks and Gracia took place. In this case, Officer Gracia testified that he asked appellant if he had a A20.@ According to Gracia=s testimony, appellant responded that he did not possess the cocaine, but would or could obtain it.[3] Appellant then got in Gracia=s vehicle and directed him to drive to a house at 3711 Bellfort. Gracia testified that appellant requested the money and Gracia gave him $20. According to the testimony, appellant told Gracia to wait. Appellant then left the vehicle and walked behind the house, out of Gracia=s sight. Gracia stated that, when appellant emerged and approached the vehicle, he looked nervous and was sweating. According to Gracia, appellant had his right hand closed as if he were about to give Gracia what was in his hand. Appellant then walked back to the patio area and Gracia saw him motion to Banks with his hand. At that point, Gracia observed Banks walk over to appellant and out of Gracia=s view. Banks returned alone to the driver=s side of Gracia=s vehicle and handed him the cocaine. Although appellant was not present during the actual transfer, based on this evidence, the jury could have found appellant a party to an actual transfer by finding that appellant, acting with intent to promote or assist the commission of the offense, encouraged, directed, or aided in the commission of the offense under the law of parties. Therefore, the evidence is legally sufficient to sustain appellant=s conviction. Accordingly, we overrule appellant=s first issue. In his fourth issue, appellant contends the evidence is factually insufficient to convict him because appellant contradicted Officer Gracia=s testimony, stating that appellant did not participate in the transaction and was merely attempting to get a ride from Gracia to the location. As further support for his contention, appellant points out that the police officers did not recover the $20 appellant allegedly received from Gracia. The jury is the sole judge of the weight and credibility given to any witness=s testimony. Cain, 958 S.W.2d at 407. The jury may believe or disbelieve all or part of any witness=s testimony. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). A factual‑sufficiency challenge will not necessarily be sustained simply because the record contains conflicting evidence upon which the fact finder could have reached a different conclusion. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A reviewing court may disagree with the fact finder=s resolution of conflicting evidence only when it is necessary to prevent manifest injustice. See id. at 164B65. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. See Cain, 958 S.W.2d at 410. In this case, the jury apparently chose to believe Officer Gracia=s version of the events, despite appellant=s contradictory account and the fact that the $20 was not recovered. After reviewing the evidence in a neutral light, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, C S.W.3d C, C (Tex. Crim. App. Apr. 21, 2004). Accordingly, we overrule appellant=s fourth issue. Having concluded the evidence is legally and factually sufficient to support the theory of actual transfer, we need not address the remaining issues dealing with the alternative theories of constructive transfer and offer to sell. We, therefore, affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed August 10, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The jury charge included the following instruction: All persons are parties to an offense who are guilty of acting together in the commission of the offense. 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. 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 solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense. [2] Neither the State nor appellant disputes that Banks committed the offense of delivery of a controlled substance. [3] Gracia testified both that appellant told him he would obtain the cocaine and that he could obtain the cocaine: Q: Did he say anything else? A: That, you know, if I couldn=t -- if I didn=t -- if I didn=t have -- I asked him me [sic] if he had a 20. He said he didn=t have it, he=d get it. *** Q: Okay. So, this defendant indicated that he could get you a 20; is that right? A: Correct.