Flores, Abelardo v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed November 1, 2005

Affirmed and Memorandum Opinion filed November 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00444-CR

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ABELARDO FLORES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 939,838

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M E M O R A N D U M O P I N I O N

Abelardo Flores appeals a conviction for delivery of a controlled substance[1] on the grounds that the evidence is legally and factually insufficient to support the jury=s verdict. We affirm.

Legal Sufficiency

Appellant=s first point of error contends that the evidence is legally insufficient to show delivery of a controlled substance because the State did not prove an actual or constructive transfer of, or offer to sell, the controlled substance. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinasv. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).

The elements of the offense of delivery of a controlled substance are: (1) a person (2) knowingly or intentionally (3) delivers (4) a controlled substance. Tex. Health & Safety Code Ann. ' 481.112(a) (Vernon 2003). A delivery may be effected through: (1) actual transfer, (2) constructive transfer, or (3) an offer to sell. Id. ' 481.002(8) (Vernon Supp. 2004-2005). Delivery by offer to sell is complete when, by words or deed, a person knowingly or intentionally offers to sell a controlled substance. Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim. App.1986).

In this case, the trial court submitted all three theories of delivery to the jury, each of which authorized appellant=s conviction either as a principal or as a party to a delivery by Enrique Alvaran. Where, as here, the court=s charge authorized the jury to convict on more than one theory, the verdict will be upheld if the evidence is sufficient on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Salinas, 163 S.W.3d at 739. Such party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act. Id. at 739-40.

Viewed in the light most favorable to the jury verdict, the evidence shows the following facts. Confidential police informant Elroy Garcia was introduced to appellant by appellant=s brother after Garcia mentioned that he was interested in purchasing some heroin. Garcia then introduced appellant to undercover police officer John Garza, posing as a buyer, on February 11, 2003. During this meeting, Garza purchased what was purported to be an ounce of heroin (but was actually less than that) from appellant and arranged to purchase a larger amount of heroin from appellant on a future date. At a meeting on February 12, between appellant, Garcia, and Alvaran, Alvaran delivered additional heroin to Garcia to make up the shortage from the preceding day=s sale to Garza. Between February 13 and February 17, appellant placed about ten phone calls to Alvaran. On February 17, appellant and Alvaran went to Garcia=s motel room, where Alvaran placed heroin in plain view and the three discussed the weight and purity of the heroin.[2] When Garza arrived, they all discussed the apparent shortage of heroin from the earlier deal, as well as the quality of the heroin, after which several officers broke into the room to arrest appellant and Alvaran.[3] This evidence is legally sufficient to prove that appellant, himself or with Alvaran, offered to sell, by words or deed, a controlled substance to Garza. Therefore, appellant=s first point is overruled.

Factual Sufficiency

Appellant=s second point of error challenges factual sufficiency on the ground that the State=s evidence of his involvement in the drug transaction was greatly outweighed by his evidence that his dealings with Garcia were entirely innocent and simply concerned the potential purchase of a property in Mexico. In reviewing factual sufficiency, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005).

To support this contention, appellant directs us to his own testimony, testimony of Geraldo Flores, appellant=s brother, and testimony of a family friend, Reynaldo Contreras. Both appellant=s brother and Reynaldo Contreras corroborated appellant=s testimony that his dealings with Garcia involved only a land deal in Mexico. In addition, appellant denied being involved in the February 11th and 12th meetings and denied having met with Garza before February 17th. Appellant further testified that he barely knew Alvaran and that he was only present at the February 17th meeting to bring beer to Garcia. Appellant thus contends that this Adefense evidence greatly outweighed that of the state in credibility.@ Although there is clearly conflicting evidence regarding appellant=s involvement in the drug transactions, our factual sufficiency review may not substantially intrude on the fact finder=s role as sole judge of the weight and credibility of the witnesses,[4] except to avoid a manifest injustice.[5] Because our record does not reflect any such disparity in the evidence in this case, appellant=s second point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed November 1, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty and the trial court assessed punishment of 12 years confinement.

[2] During this meeting, police officer Daniel Rosales monitored the conversation via a microphone hidden on Garcia=s body. The tape recording from this meeting was provided to the jury, as well as a translated transcript (the parties spoke Spanish during the meeting). Portions of the tape recording were played, and, although the translator could not identify the voices on the recording in the translated transcript, both officers Rosales and Garza identified appellant=s voice. Rosales identified appellant=s voice as stating Athe one I brought, it=s good,@ as well as identifying the voices of appellant, Alvaran, and Garcia discussing the weight of the heroin.

[3] Officer Garza identified appellant=s voice as stating, AThe mistake, the one I brought. This is the same as the last that was sent.@ Officer Garza testified that appellant was referring to the February 11th heroin deal between appellant and Garza, when appellant had Ashorted@ Garza.

[4] Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

[5] Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).