Nash Jr., Richard v. State

Affirmed and Memorandum Opinion filed August 8, 2006 Affirmed and Memorandum Opinion filed August 8, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00495-CR ____________ RICHARD NASH, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 984,605 M E M O R A N D U M   O P I N I O N A jury convicted appellant, Richard Nash, Jr., of possession, with intent to deliver, cocaine weighing at least 400 grams. Appellant elected for the trial court to assess punishment, which it assessed at thirty-five years= confinement in the Institutional Division of the Texas Department of Corrections and a $500 fine. Appellant argues that the trial court erred in not instructing the jury on the law of entrapment, and further contends the evidence was legally and factually insufficient to support his conviction either as a principal or a party. We affirm. Factual and Procedural Background On February 2, 2004, Houston police arrested L.C.[1] for possessing more than a kilogram of cocaine. L.C. was returning to Mississippi to resell the cocaine. L.C. faced fifteen years to life confinement for the amount of cocaine he was carrying. Determined not to face imprisonment, L.C. signed a contract with the State in which he agreed to act as a confidential informant and aid in recovering ten kilograms of cocaine in exchange for a dismissal of charges against him. L.C. contacted appellant, whom he believed would agree to facilitate the sale of cocaine. Appellant obliged. Working with police, L.C. arranged for the drug transaction to take place on April 15, 2004. The negotiated deal was for 10 kilograms of cocaine, with a total negotiated price of $166,000. A narcotics officer posed as ABig Boy,@ an out-of-town buyer. Nash spoke with Big Boy on the telephone numerous times to negotiate details such as price and how many kilograms would be delivered at a time,[2] and to arrange for a Aflash@ of the purchase money. Nash met Big Boy in a parking lot in order to confirm that Big Boy had the necessary funds to pay for the cocaine. At the flash, Nash thumbed through the $166,000. After he was satisfied that there were sufficient funds, he left to arrange the final details with the others involved in the deal. Eventually, L.C. drove with Nash to an apartment, where the drugs were delivered. Only five kilograms were present. Once L.C. verified that Nash and his cohorts had produced cocaine, he called Big Boy, who in turn notified other officers to raid the apartment. Police recovered five kilograms of cocaine and a pistol from the apartment. A grand jury indicted Nash for the felony offense of possessing more than 400 grams of cocaine with the intent to deliver. A jury convicted appellant and the trial court sentenced him to thirty-five years= confinement and a $500 fine. Appellant raises five issues. In his first, he contends the trial court erred when it refused to include his entrapment instruction in the jury charge. In his remaining issues, appellant claims the evidence was both legally and factually insufficient to support his conviction. We will consider the sufficiency issues first, then the entrapment issue, and affirm. Analysis I. Legal Sufficiency Appellant argues the evidence was legally insufficient to sustain his conviction, either as a principal or a party to the offense. In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. Below, the jury returned a general verdict of guilt, having been instructed on principal and party liability. We will affirm if the evidence is sufficient to support the verdict on any of the bases. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). Therefore, if the evidence is legally sufficient to convict appellant either as a principal or a party, we will affirm. Appellant=s chief argument is that he did not exercise actual care, custody, and control over the cocaine. Stated differently, appellant never actually possessed the cocaine; rather, appellant was merely the broker for the deal and the cocaine was not his. However, because the evidence is legally sufficient to prove appellant was a party to the offense, we affirm the conviction. See Tex. Pen. Code ' 7.02(a)(2) (even if a person does not actually commit the offense, she still may be found guilty if she acts with the intent to promote or assist in commission of the crime, or if she solicits, encourages, directs, aids, or attempts to aid another in the commission of the crime). At minimum, the evidence showed appellant was guilty as a party to the offense. The State presented numerous witnesses connecting appellant to the drug deal. L.C. explained that he contacted appellant because he believed appellant could arrange for the sale of cocaine. L.C. also testified that appellant readily agreed to facilitate the sale. Other police officers surveilling the money flash, and eventually raiding the apartment, connected appellant with each stage of the drug transaction. Finally, Big Boy testified that appellant spoke with him on the phone numerous times to work out details for the transaction. Appellant solicited others to produce five kilograms of cocaine, and facilitated negotiations and transfer of the drugs. The evidence placed appellant at the meeting point between buyers and sellers of a large quantity of cocaine. Viewed in the light most favorable to the verdict, the evidence was legally sufficient to support appellant=s conviction as a party to the offense. We overrule appellant=s legal sufficiency challenge. II. Factual Sufficiency Appellant also raises the issue of factual sufficiency. When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005). Again, we will affirm if the evidence is sufficient to support the verdict on either the theory of principal or party liability. See Rabbani, 847 S.W.2d at 558. Although we have reviewed the entire record and have considered all evidence presented at trial, we cannot assume the role of fact finder and substitute our judgment for that of the jury. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004) (stating that appellate courts are not to Afind@ facts or substitute their judgment for that of the jury). The evidence is factually sufficient as well. At trial, appellant presented no evidence of his own. Therefore, there is no contrary evidence that would be so strong that the standard of proof could not be met. Rather, we must determine only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust. It was not. All of the evidence presented placed appellant as the broker for the drug transaction. As we have explained, he negotiated the terms of the deal, located and secured the cocaine through his contacts, counted the money during the flash, and led L.C. and police to the apartment where the drugs were to be exchanged. Indeed, he facilitated the entire transaction. As we have also explained, whether appellant actually possessed the cocaine himself, or only promoted or assisted in the crime, is unimportant because the jury was instructed on the law of parties. The evidence showed that appellant was one of the chief promoters and encouragers of the drug sale. Viewed in a neutral light, the evidence was factually sufficient to sustain appellant=s conviction as a party to the offense. We overrule appellant=s factual sufficiency challenge. III. Entrapment In his final issue, appellant argues the trial court erred in refusing to instruct the jury on the law of entrapment. Appellant contends L.C. was a member of law enforcement for purposes of entrapment when he approached appellant about the drug transaction. Additionally, appellant argues that the criminal intent formed in L.C.=s mind, and that the amount of money and profit to be made was such as to induce an ordinary law abiding citizen of average resistance to break the law. Although the State does not disagree that L.C. was a member of law enforcement for purposes of entrapment, it contends that appellant was eager to make the drug deal before any prices were negotiated. According to the State, because appellant argues that it was the large amount of profit to be made that induced him to act criminally, the fact that appellant readily agreed to facilitate the deal before any price and thus profit was set belies appellant=s argument. We agree. Under Texas law, if a defendant already possesses the narcotics before he meets with law enforcement, the evidence raises no issue of entrapment and refusal of a requested entrapment charge is not error. Roberson v. State, 01-05-00513-CR, 2006 WL 1350249, at *4 (Tex. App.CHouston [1st Dist.] May 18, 2006) (not designated for publication) (citing McKinney v. State, 372 S.W.2d 699, 701 (Tex. Crim. App. 1963)). The same is true here. Below there was no controverting evidence to indicate that appellant was induced to enter the drug business and procure narcotics he otherwise did not have access to due to the proposed deal. Rather, the evidence indicated that appellant was merely doing business the way he had done for years. Specifically, the evidence indicated appellant already had access to the ten kilograms of cocaine and agreed to broker the deal before he knew how much money he stood to make. Accordingly, it was not law enforcement who induced appellant to engage in the drug business. Appellant was already engaged in the drug business and he merely saw a potential customer. Because appellant already had access to the cocaine and had already agreed to the deal before any price or profit was negotiated, there was no error in refusing to include the requested charge. We overrule appellant=s final issue. Conclusion Having overruled each of appellant=s issues, we affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed August 8, 2006. Panel consists of Justices Fowler and Seymore, and Senior Justice Mirabal. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Because L.C. was a confidential informant, we use only his initials. [2] Nash wanted to perform the deal one kilogram at a time. The narcotics officer wanted all ten kilograms at once.