OLIVER ANTHONY DECAMBRE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 26, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-94-02010-CR
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OLIVER ANTHONY DECAMBRE, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F94-03804-UR
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O P I N I O N
Before Justices Chapman, Whittington, and Wright
Opinion By Justice Wright
        Oliver Anthony Decambre appeals his conviction for conspiracy to possess cocaine. After the jury returned a verdict of guilty, the trial court assessed punishment at forty years' confinement and a fine of $100,000. In two points of error, appellant contends the trial court erred by (1) admitting a co-conspirator's statements into evidence, and (2) considering the presentence investigation report. We overrule appellant's points of error and affirm the trial court's judgment.
 
FACTS
 
        Sergeant David McCoy, a narcotics officer in the Dallas Police Department, testified that he received information from a confidential informant that the people at a business, known as U.K. Motors, were interested in purchasing large amounts of drugs. The confidential informant agreed to introduce Santa Cruz, a paid informant for the Dallas Police Department, to the people at U.K. Motors as a drug dealer.
        The confidential informant introduced Cruz to Tiffany Thornton, the owner of U.K. Motors. After meeting and talking with Thornton, Cruz offered to sell her a kilogram of cocaine. Several days later, Cruz went to U.K. Motors. When Cruz arrived, Thornton showed her the money for part of the cocaine. A short time later, appellant arrived and showed Cruz the rest of the money. Cruz called McCoy with a prearranged arrest signal. The police arrested appellant, Thornton, and Keith Love.
 
CO-CONSPIRATOR'S STATEMENTS
 
        In point of error one, appellant contends the trial court erred by allowing Cruz to testify about a series of statements made by Thornton concerning the drug deal. FN:1 Appellant contends that because the State did not put on evidence at the hearing to determine the admissibility of the statements, the trial court erred by "overrul[ing] appellant's [hearsay] objection to the evidence without requiring proof of any kind" from the State. The State argues that the statements were properly admitted. We agree.
        Rule 801(e)(2)(E) of the Texas Rules of Criminal Evidence provides that a statement is not hearsay if the statement is (1) offered against a party and (2) is a statement by a co-conspirator of a party made (a) during the course of and (b) in furtherance of the conspiracy. Tex. R. Crim. Evid. 801(e)(2)(E). Before admitting a co-conspirator's statement, the trial court must be satisfied that the statement falls within the rule. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). FN:2
        The trial court has broad discretion in determining preliminary questions of the admissibility of evidence. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). In making this determination, the trial court is not bound by the rules of evidence. Tex. R. Crim. Evid. 104(a); see also Bourjaily, 483 U.S. at 175. Thus, the trial court may consider the complained of statement in determining whether the State met its burden to show the existence of a conspiracy. Bourjaily, 483 U.S. at 179-81; Rodriguez v. State, 896 S.W.2d 203, 205 (Tex. App.--Corpus Christi 1994, no pet.); Crawford v. State, 863 S.W.2d 152, 164 (Tex. App.--Houston [1st Dist.] 1993), rev'd on other grounds, 892 S.W.2d 1 (Tex. 1994).
        The trial court is not required to have a formal hearing to make the preliminary determination. Nor is the trial court required to make specific findings about the existence of a conspiracy prior to the statement being admitted. U.S. v. West, 58 F.3d 133, 142 (5th Cir. 1995); United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992), cert. denied, 507 U.S. 1012 (1993). At the hearing on appellant's motion in arrest of judgment, the trial court expressly stated that a conspiracy existed. The trial court then denied the motion in arrest of judgment, thereby impliedly finding that the statements were made during the course of and in furtherance of the conspiracy. See Fragoso, 978 F.2d at 900-901 (by denying motion for acquittal trial court impliedly made the preliminary findings, therefore, any error in failing to make explicit findings is harmless). Thus, we now turn to the question of whether the trial court properly admitted the complained of statements.
         Cruz testified that she went to U.K. Motors and discussed the deal with Thornton. Thornton told Cruz she had two buyers; one would purchase one-half of a kilogram for $10,000, and the other would purchase one-half of a kilogram for $9,000. While Cruz and Thornton were negotiating, Thornton spoke with two men in a white car. Several days later, Cruz went to U.K. Motors to sell the cocaine. She arrived about 7:30 p.m. and Thornton showed her $10,000 in a briefcase. Thornton told Cruz the other buyer was coming with the remainder of the money. About thirty minutes later appellant arrived in a white car. After appellant came into the building, appellant told Cruz "we're ready." Cruz asked appellant about the money. He pulled a paper bag containing the money out of his pocket and showed it to Cruz. Cruz told Thornton and appellant she had to call "her people" to bring the cocaine. She then called McCoy with the prearranged arrest signal.
        McCoy testified to the following. McCoy was in a surveillance van parked outside of U.K. Motors. At about 8:00 p.m. a white car drove up. Appellant got out of the car, spoke with Cruz and Thornton, and then went inside U.K. Motors. As the arrest team approached U.K. Motors, a man jumped out of the passenger side of the white car and ran. He was never positively identified or arrested. When the arrests were made, the officers found a paper bag in a trash can near appellant. The paper bag contained a gun and bundles of money rolled up in rubber bands. The money was in "thousand dollar rolls." The money was folded into rolls with large denominations on the outside and smaller denominations inside. The rolls were packaged to represent $1,000 in total bills, even though the entire roll did not contain $1,000. The rolls of money are typical of those used in drug transactions.
        We conclude, based on the above evidence, that the trial court did not abuse its discretion in determining that the State showed by a preponderance of the evidence that (1) appellant and Thornton conspired to buy cocaine from Cruz, (2) the statements were made during the course of the conspiracy, and (3) the statements were made in furtherance of the conspiracy. Therefore, we conclude the trial court did not abuse its discretion in admitting the statements under rule 801(e)(2)(E). We overrule point of error one.
PRESENTENCE INVESTIGATION REPORT
 
        In point of error two, appellant contends the trial court erred by considering the presentence investigation report without written authorization from appellant.
        After the jury returned a verdict finding appellant guilty of conspiracy to possess cocaine, appellant requested a presentence investigation. The trial court ordered the investigation and recessed the trial for a later punishment and sentencing hearing. The trial court received and reviewed the report. At the punishment hearing, appellant stated that he knew that the trial court had read the report but asked that the trial court not consider it when assessing his sentence. The trial court denied appellant's request and assessed punishment at forty years' confinement and a $100,000 fine.
        Appellant argues that he "expressly communicated to the [trial] court that he did not authorize the [trial] court to inspect the presentence report or to consider it in assessing punishment." The State argues that although appellant may not have authorized the trial court to inspect the report, because appellant had been convicted of the offense, it was not error for the trial court to consider the report. We agree with the State.
        Article 42.12, section 9(a) provides that before imposition of sentence by a judge in a felony case, the judge shall, subject to exceptions not present in this case, direct a supervision officer to report to the judge, in writing, on the presentence investigation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 1997). Article 42.12 section (c) provides:
 
The judge may not inspect a report and the contents of the report may not be disclosed to any person unless:
        (1) the defendant pleads guilty or nolo contendere or is          convicted of the offense, or
        (2) the defendant, in writing, authorizes the judge to          inspect the report.
Tex. Code Crim. Proc. Ann. art. 42.12, § 9(c) (Vernon Supp. 1997).
        Because appellant had already been convicted of conspiracy to possess cocaine, the trial court was not required to obtain appellant's written authorization to inspect the report. The statute required the report to be produced and did not prevent the trial court from inspecting it. Therefore, we conclude the trial court did not err by denying appellant's request that it not consider the report in assessing punishment. We overrule point of error two.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
942010F.U05
 
FN:1 In his brief, appellant complains generally about eleven pages of testimony "elicited from Santa Cruz in a series of statements purportedly made by Tiffany Thornton concerning drug dealing, all of which were made outside of the presence of the appellant and clearly hearsay, if not co-conspirator statements under rule 801(e)(2)(E)." Generally the complained of statements are that: (1) Thornton told Cruz she had "good customers" to buy the cocaine; (2) Thornton had two customers, one who would pay $10,000 for one-half kilo and one who would pay $9,000 for one-half of a kilo; (3) the customers were ready to buy; (4) the customers had the money together and would bring it that day; (5) Thornton had the money ready; and (6) everyone was ready to buy the cocaine.
FN:2 Because the Texas Rules of Criminal Evidence are patterned after the Federal Rules of Evidence, we are to consult cases interpreting the federal rules unless the Texas rule clearly departs from its federal counterpart. Cole v. State, 839 S.W.2d 798, 801 (Tex. Crim. App. 1990). Texas Rule of Criminal Evidence 801(e)(2)(E) and Federal Rule of Evidence 801(d)(2)(E) are worded identically. Federal cases interpreting this rule of evidence are particularly probative considering the large number of federal conspiracy cases and the limited number of Texas cases. Meador v. State, 812 S.W.2d 330, 334 n.7 (Tex. Crim. App. 1991).
File Date[11-25-96]
File Name[942010F]