Enrique Villanueva v. The State of Texas--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ENRIQUE VILLANUEVA, )

) No. 08-03-00304-CR

Appellant, )

) Appeal from the

v. )

) 34th Impact District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D00189)

)

O P I N I O N

This is an appeal from a jury conviction for delivery of 400 grams or more of cocaine. The trial court sentenced Appellant Enrique Villanueva to 15 years= in prison. Appellant raises two issues: that the evidence is legally and factually insufficient to support the conviction. We affirm.

The facts of this case are simple and involve a narcotic sting arrest. Detective Johnny Paniagua of the El Paso County Sheriff=s Department was assigned to the El Paso Metro Narcotics Task Force working undercover when he was told by a confidential informant about two men who wanted to sell ten kilos of cocaine. Detective Paniagua told the informant to have the two men call him. The detective received a phone call from the men, and over the course of a number of phone calls, he agreed to buy ten kilos of cocaine. He told the jury that he talked with both men, and on direct examination, he stated that it was Appellant who gave him instructions on where they would meet to complete the deal. The detective also testified that it was the Appellant who told him at some point, not clear from the record, that they only had five kilos of cocaine to sell that day. On cross-examination, the detective conceded that his arrest report only reported telephone conversations with the Appellant=s codefendant, Jesus Garcia.

It was agreed that the buy would take place in the Bassett Shopping Center parking lot, near the Big 8 grocery store. The detective was told that the two men would be waiting in a parked green Chevette sedan with Mexican license plates. When the detective arrived, the green sedan was parked with the front hood open and Appellant was standing in front of the engine compartment. Garcia was seated inside the car. The detective parked his car next to the green Chevette, got out, and went up to the Appellant. The detective testified that the Appellant told him: AThe cocaine is in the back.@ The detective then walked over to the passenger side of the car where Garcia was seated. Garcia reached into the back seat and pulled out a gray plastic bag that contained five kilos of cocaine. Garcia handed it to Detective Paniagua who opened the bag to make sure that it was cocaine. Then the detective walked towards his car, and as he passed, asked the Appellant if they wanted to count the money there or go some where else. The Appellant, according to the detective, told him that they would count the money there, and walked alongside the officer. When they reached the rear end of the detective=s car, the detective opened the tail gate and displayed a Christmas shopping bag with money. As the detective put the bag of cocaine into the car, he gave a signal for other officers to converge and arrest Appellant and Garcia. On cross-examination, the detective testified that he did not remember if he had recorded the fact that the Appellant Awent with me to get the money@ in his arrest report.

The Appellant raises two issues, legal and factual sufficiency of the evidence, but he only prays for an acquittal. Nevertheless, we address both issues.

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether 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, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108,

110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which we may find the evidence to be factually insufficient. Zuniga, 144 S.W.3d at 484. Evidence is factually insufficient when the evidence supporting the verdict, considered alone, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. Although we are authorized to set aside the jury=s determination, we must give appropriate deference to its determination and should not intrude upon the jury=s role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Accordingly, we are authorized to set aside the jury=s finding of facts only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.3d at 135. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Id.

The Appellant concedes that the law of parties is applicable to the charged offense of delivery of cocaine. The crux of his argument is that there is no or insufficient evidence to prove that he was a party to the offense. He suggests that because some of Detective Paniagua=s testimony at trial was inconsistent with what the officer recorded in his arrest report it should be discounted, leaving only Appellant=s statement, Athe cocaine is in the back@ as evidence to support the verdict. He ignores, however, the standard of review for legal sufficiency and we find that statement alone is legally sufficient when viewed in the light most favorable to the verdict and a rational trier of fact could conclude that Appellant aided in the delivery of cocaine by Garcia to Detective Paniagua. Moreover, we do not find the detective=s testimony at trial to be either inconsistent or contrary to what he recorded in his arrest report; consequently, there is overwhelming evidence that Appellant was involved in the illicit transaction and aided in the actual transfer. Considering all of the evidence in the record in a neutral light, there is simply no merit to the argument that the evidence is so weak as to be clearly wrong and manifestly unjust. The evidence supporting the verdict is not too weak to support the jury=s finding of guilt beyond a reasonable doubt. The jury was rationally justified in finding guilt beyond a reasonable doubt. Therefore, we conclude the evidence is both legally and factually sufficient to sustain the conviction.

The judgment of the trial court is affirmed.

November 18, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)