LUIS DANIEL ALONSO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 31, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01355-CR
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LUIS DANIEL ALONSO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F05-00980-TQ
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OPINION
Before Justices Bridges, FitzGerald, and Richter
Opinion By Justice Bridges
        Luis Daniel Alonso appeals his conviction for engaging in organized criminal activity. A jury convicted appellant and sentenced him to twenty years' confinement. In four issues, appellant argues the trial court erred in overruling his motion to quash the indictment, the evidence is legally and factually insufficient to support his conviction, and the trial court erred in overruling his objection to the prosecutor's argument. We affirm the trial court's judgment.
        Beginning in late 2001, agent Marjorie Poche of the Federal Bureau of Investigation was part of a team of investigators looking into civil rights charges against confidential informants and Dallas police officers involved in a fake drug scandal in which individuals were being put in jail for selling fake drugs. Poche determined that Dallas police officer Mark De La Paz was using confidential informants to make drug deals. The confidential informants discovered De La Paz was not checking the “drugs” seized from dealers, and they made “huge purchases” of pool chalk which they crushed and planted on individuals. The bigger the amount of fake “drugs” seized in a bust, the more money the confidential informants were paid by the Dallas police or the City of Dallas. Poche testified De La Paz was lying on his reports and evidence bags. However, De La Paz was acquitted of civil rights charges. Dallas County district attorney Bill Hill then appointed a special prosecutor to prosecute De La Paz and the confidential informants under state law. Poche turned over all the evidence she had in connection with her investigation of the fake drug scandal to department of public safety officers.
        As part of her investigation, Poche interviewed appellant in January 2002. Appellant said his brother Enrique recruited him to work as an informant with De La Paz for money. Appellant said he took part in “about four” drug transactions. Appellant said he and his brother met with De La Paz and went to a “shop on Davis street” where they made a cocaine buy. Appellant gave the cocaine to De La Paz, and they made arrangements to make a second drug buy a day or two later. At the second buy, the same person appellant bought from the first time was there. Appellant went up to the man, who told him, “Here's two kilos. I have more if you want it, but come back with the money.” The man gave them the kilos, which they took to De La Paz.   See Footnote 1  The police arrested the man, Jacinto Mejia, and discovered “fifteen or sixteen kilos” in the back of a truck sitting outside his shop. Months later, the kilos were tested, and the bulk of the material was “pool cone chalk” with a little bit of cocaine “sprinkled on top of one or two of them.” Poche learned that informants were sometimes sprinkling cocaine over fake drugs because they thought it would smell like cocaine. However, the informants quit sprinkling cocaine because it didn't “look like the police were catching on.”
        Appellant told Poche that he took part in a second drug deal on August 16, 2001 in which a man named Jose Vega was arrested. Enrique had been asking appellant if he knew anyone who sold drugs, and appellant said he used to work with “Anthony” who sold drugs. De La Paz told appellant to “ask if he will sell kilos.” Appellant went to a mechanic's shop where he bought cocaine from Anthony but did not ask if Anthony sold kilos. However, appellant told De La Paz that “you can get kilos there.” Appellant said “Roberto” set up a drug deal at the shop and took appellant there a couple days later. Roberto told appellant to go in the bathroom and the drugs would be on top of some towels. Appellant took two kilos off a shelf in the bathroom and carried them out under his shirt. Roberto apparently told appellant to “look at the guy outside” and that appellant should point him out to De La Paz as “the drug dealer” and look in the back seat of a Cadillac where there were more drugs.   See Footnote 2  Appellant came out of the shop, gave the drugs to De La Paz and told him there were more drugs in the Cadillac, and Vega was arrested. Kilos of “drugs” were seized from the Cadillac, but when they were tested they all turned out to be pool cone chalk.
        During her investigation, Poche located three receipts showing purchases of pool cone chalk from Billiards and Barstools. The first receipt, dated July 18, 2001, showed a sale of thirty-six cones of pool chalk to Luis Alonso. The home phone number listed on the receipt was appellant's cell phone number listed on his informant sheet with the Dallas police department. The next day, one of the drug arrests happened involving a man named Esparza. The second receipt, dated August 5, 2001, showed a sale of thirty cones of pool chalk to “Luis Alonzo” and listed appellant's cell phone number. The third receipt, dated August 6, 2001, showed a sale of ninety cones of pool chalk to “Luis Alonzo” and again listed the same address and cell phone number. Poche testified each cone of pool chalk made a kilo of fake cocaine. According to Poche, the Dallas police department paid “just under $500,000” to confidential informants as part of the fake drug scam. The indictment in this case charged appellant, as part of a combination, of misappropriating between $100,000 and $200,000.
        Reyes Roberto Gonzalez testified for the State. Gonzalez testified he met Enrique Alonso in 1989 and sold drugs with him. In 1996, Gonzalez was convicted of a federal offense for selling drugs and deported. Gonzalez returned to the Dallas area in 2001 and contacted Enrique, who told Gonzalez they could make money by planting fake drugs on different people. Gonzalez, Enrique, appellant, and Jose Ruiz used pool chalk to simulate cocaine and formed the chalk into kilo-sized plastic packages. Appellant's job was to wrap the fake kilos in plastic, and he used different colors of plastic so that the kilos would look like they came from different sources.
        Daniel Cavazos testified he lived in an apartment with Ruth Alonso, Enrique Alonso's daughter, and her boyfriend in June 2001. Enrique frequently came to the apartment with appellant and others. At times, Cavazos saw Enrique and appellant unloading boxes of pool chalk from appellant's car. At first, Cavazos did not understand what the men were doing with the chalk, but he eventually figured out they were making fake drugs. At times, De La Paz came by and talked to the men in front of the apartments, but he never came in the apartment. De La Paz eventually signed Cavazos up as a confidential informant. One night Cavzos agreed to take fake drugs and “put it in somebody's shop or something.” Appellant and the other men were present and made up fake drugs which Cavzos put in trash bags and took and planted in an empty truck. The next day, De La Paz picked Cavazos up and drove him to the location where Cavazos had planted the fake drugs and Cavazos said he had seen “the dope” in the back of the truck. Cavazos said he had been involved in a drug deal and had seen the drugs the night before.         Appellant testified that, in June 2001, he became a confidential informant and made a small drug buy “on Davis close to the laundry.” Appellant gave the drugs to De La Paz and was paid $50. According to appellant, De La Paz kept calling him thereafter for the “next deal.” Appellant and Enrique met De La Paz, who told appellant nothing was going to happen to him. Appellant and Enrique drove to a garage where the same man who had sold appellant drugs on Davis street gave appellant two kilos and told him, “If you don't bring money, later you know what happened.” The man also told appellant there was “more in the red truck” and “Mejia was the guy.” Appellant took the two kilos and gave them to De La Paz “around the corner.” At De La Paz' urging, appellant got in a truck with De La Paz, and De La Paz drove to the garage and asked appellant to “show [him] the person.” Appellant pointed out Mejia. Appellant went home and De La Paz called him about an hour and a half later and told him, “Congratulations. It's pure cut.” Appellant was paid between $2500 and $3000 for his work.
        In a third case, appellant went to a garage with Enrique and Gonzalez. Gonzalez told appellant to go inside and look around and take two kilos from a shelf in the restroom and place the kilos in his shirt. Appellant did so and gave the two kilos to De La Paz. Appellant testified he believed the two kilos were cocaine. Appellant earned $350 for his work. Appellant confirmed his cell phone number was on receipts showing the purchase of large amounts of chalk from a Billiards and Barstools store, but he claimed Gonzalez “always” used his cell phone. Appellant testified he did not buy any pool chalk. At the conclusion of all the evidence, appellant was convicted of engaging in organized criminal activity, and this appeal followed.
        In his first issue, appellant argues the trial court erred in overruling his motion to quash the indictment. Specifically, appellant complains the indictment failed to give him notice of (1) the identity of the members of the “alleged combination” of which appellant was supposed to be a member, (2) what overt acts appellant committed, and (3) the specific amount of money misappropriated. We review the trial court's denial of a motion to quash de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). A defendant must be given notice before trial of the “nature and cause” of the accusation against him, and the notice must be given with sufficient clarity and detail to enable the defendant to anticipate the State's evidence and prepare a proper defense to it. Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). Thus, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. Id. A defendant may be charged with engaging in organized criminal activity if he (1) commits one of the enumerated offenses in penal code section 71.02 or (2) conspires to commit one of the offenses listed in penal code section 71.02. Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2006).
        An indictment for organized criminal activity alleging a completed commission of an offense need not set out the names of the other members of the combination. State v. Duke, 865 S.W.2d 466, 468 (Tex. Crim. App. 1993); Gemoets v. State, 116 S.W.3d 59, 72 (Tex. App.-Houston [14th Dist.] 2001, no pet.). When the State alleges that a defendant has committed, rather than has conspired to commit, one of the enumerated offenses, there is no requirement that it allege or prove the existence of any “overt acts.” See Duke, 865 S.W.2d at 468; Gemoets, 116 S.W.3d at 73. An indictment that tracks the language of the statute is legally sufficient, and the indictment need not plead the evidence relied upon by the State. Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987); Gemoets, 116 S.W.3d at 72 (rejecting appellant's contention, in organized crime case involving theft from five insurance companies, that indictment should allege each incident of theft, including date, amount of money, name of insurance company, and name of patient or file involved).
        Here, the indictment alleged the completed commission of the offense of engaging in organized criminal activity and therefore did not need to set out the names of the other members of the combination. See Duke, 865 S.W.2d at 468; Gemoets, 116 S.W.3d at 72. Because the indictment alleged the commission of the offense of engaging in organized criminal activity, not a conspiracy to commit the offense, there was no requirement that the indictment allege “overt acts.” See Duke, 865 S.W.2d at 468; Gemoets, 116 S.W.3d at 73. The indictment tracked the appropriate language of section 71.02 of the penal code, and it did not need to plead the evidence relied upon by the State, including the specific amount of money misappropriated. See Livingston, 739 S.W.2d at 321; Gemoets, 116 S.W.3d at 72. Under these circumstances, the trial court did not err in overruling appellant's motion to quash the indictment. See Gemoets, 116 S.W.3d at 72. We overrule appellant's first issue.
        In his second and third issues, appellant argues the evidence was legally and factually insufficient to support his conviction. Specifically, appellant complains the evidence is insufficient to (1) show from whom the money was stolen, (2) disprove appellant's claim that he participated as a confidential informant in a legitimate drug deal, and (3) corroborate the accomplice witness testimony against him. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 2005). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). The accomplice witness rule is a statutorily imposed sufficiency review which is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Cathey, 992 S.W.2d at 462-63.
        Here, the record shows appellant worked as an informant with De La Paz for money. Appellant admitted being present at “about four” drug deals where the “drugs” were later discovered to be fake. David Bachelor, a Billiards and Barstools employee working at the Lewisville store in July and August of 2001, testified he sold ninety cones of pool chalk to a Hispanic man with a thick accent on August 6, 2001. Bachelor testified no one had ever purchased that many cones of pool chalk, and he had to drive to the warehouse to get the ninety cones. Bachelor called the man to come pick up the chalk. when the man arrived, Bachelor asked for the man's name to see if he was already in the computer system. The computer indicated the man had purchased chalk from the store in Euless, and Bachelor had heard from a coworker that the man had purchased 30 cones of chalk the day before at the Lewisville location.
        After completing the sale of the ninety cones, Bachelor helped the man load the chalk into his car. Bachelor testified he identified the man from a photographic lineup and identified appellant at trial as the man to whom he sold the ninety cones of chalk. Bachelor said he was “ninety percent” sure it was appellant who bought the pool chalk but also testified his identification was based on the two discussions he had with the man who bought the chalk and his interactions with the man. Kashanda Sharp, an employee at the Billiards and Barstools store in Euless, testified she sold thirty- six cones of pool chalk to someone on July 18, 2001. Sharp could not remember the person who bought the chalk, but appellant's name was listed as the purchaser on the receipt.
        David Eldridge, a sergeant investigator with the department of public safety, testified he spent “several hundred” hours investigating the fake drug scandal. Eldridge testified appellant, “the younger brother of the ringleader, Enrique Alonso,” was “brought in relatively early” to the fake drug conspiracy. The conspiracy stole money from the City of Dallas in two ways: reward money paid out for fake drug buys and money taken to purchase fake “drugs.” Concerning the “drug” purchase from Mejia at the “shop on Davis street,” Eldridge testified it did not make sense that appellant walked in and got two kilos of cocaine without paying any money. Eldridge pointed out that the two kilos would have been worth between $30,000 and $40,000 and there was no indication appellant knew Mejia. Also, Eldridge testified people in the drug world will return and rob you if you show them you have another fourteen or fifteen kilos in an “old, broken-down, unlocked red truck.” Eldridge testified Mejia would have had “well over $200,000 or $250,000” worth of drugs if the drugs had been real. Another factor Eldridge considered “highly unlikely” was the absence of any of Mejia's associates to keep a lookout, make sure the police were not around, and protect against someone like appellant coming in and stealing the drugs. Eldridge noted there were no weapons seized in the fake drug arrests. All of these factors led Eldridge to the conclusion that the purchase from Mejia was not a legitimate drug deal.
        We conclude the evidence was thus legally and factually sufficient to show appellant stole money from the City of Dallas and that he did not participate in only a legitimate drug deal. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. In addition, we conclude Bachelor's identification of appellant as the man who bought ninety cones of pool chalk and Eldridge's testimony concerning the suspicious circumstances surrounding the “drug” deal with Mejia tend to connect appellant to the offense of participating in a combination to steal money by arranging fake drug deals. See Cathey, 992 S.W.2d at 462. We overrule appellant's second and third issues.
        In his fourth issue, appellant complains the trial court erred in overruling his objection that the prosecutor argued outside the record. Specifically, appellant complains of the prosecutor's argument that “I submit to you that the City of Dallas is not interested in Mr. Alonso paying back restitution.” Appellant's objection at trial that there was “no evidence what the City of Dallas is interested in” was overruled. Appellant claims the prosecutor's argument was an attempt to deflect the jury's consideration of probation. Prosecutorial jury argument is permissible if it falls within one of the following categories: (1) summation of the evidence; (2) reasonable deductions drawn from the evidence; (3) answers to argument of opposing counsel; and (4) a plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). To the extent the prosecutor's statement was, as appellant argues, an attempt to deflect the jury from giving appellant probation, a prosecutor is entitled to argue the State's position that a particular defendant should not receive probation. Maupin v. State, 930 S.W.2d 267, 270 (Tex. App.-Fort Worth 1996, pet. ref'd). Accordingly, the trial court did not err in overruling appellant's objection to the extent he intended to object that the prosecutor's statement argued against appellant receiving probation. See id. We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051355F.U05
 
Footnote 1 We note this was appellant's characterization of events as related to Poche as part of her ongoing investigation.
Footnote 2 Again, this was appellant's characterization of events.