TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 0973356, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
On July 9, 1997, Austin police officer Tobias Santiago and another officer were working undercover, using a vehicle disguised as a taxicab. Santiago approached a group of men sitting on a park bench and told them he was in the market for crack cocaine. They told Santiago to speak to the two men standing beside a van across the street. One member of the group offered to speak to the reputed dealers in exchange for a tip. Santiago agreed to this and returned to the cab.
So summoned, the two men, Eddie Ward and appellant, crossed the street and approached the officers' vehicle. Appellant stopped a few feet away, while Ward walked up to the cab and asked Santiago what he wanted. Santiago told him. Ward agreed to sell Santiago a rock of crack cocaine for twenty dollars. Ward then walked over to appellant and placed his hand near him, palm up. Appellant reached into his pants pocket and handed something to Ward. Ward returned to Santiago and showed him a rock of crack cocaine in his hand. Santiago took the rock, paying Ward with two ten dollar bills whose serial numbers had been recorded. Santiago testified that he never saw Ward put his hands in his own pockets. Ward and appellant were arrested by uniformed officers a few minutes later. Appellant was holding one of the marked ten dollar bills when arrested.
Ward, who had previously pleaded guilty, testified for the State and confirmed Santiago's account. Ward said that he got the rock of crack cocaine from appellant and that he gave appellant the twenty dollars payment. Appellant also testified. He said that he had nothing to do with the drug transaction and did not give Ward the crack cocaine delivered to Santiago. Appellant claimed that Ward gave him one of the ten dollar bills as payment for a debt.
Appellant's point of error is stated as a challenge to the legal sufficiency of the evidence, but his argument is couched in both legal and factual sufficiency terms. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, the appellate court does not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
Appellant was convicted of constructively delivering cocaine to Santiago. A constructive delivery occurs when the defendant directs the transfer of a controlled substance, either belonging to him or under his control, by some other person or means. Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992). A constructive delivery requires a showing that (1) the defendant had either direct or indirect control of the substance transferred prior to the alleged delivery, and (2) the defendant knew of the existence of the ultimate transferee. Daniels v. State, 754 S.W.2d 214, 221-22 (Tex. Crim. App. 1988). Appellant attacks the first of these elements. He points out that Santiago did not see what, if anything, appellant handed to Ward. The only direct evidence that the cocaine delivered to Santiago came from appellant is Ward's testimony, which appellant contends we may not consider because Ward was an uncorroborated accomplice witness.
Unquestionably, Ward was an accomplice to the offense. A conviction cannot be based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979). If, after eliminating the accomplice testimony from consideration, the remaining evidence tends to connect the defendant to the offense, the corroboration is sufficient. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). The nonaccomplice evidence need not be sufficient in itself to establish the defendant's guilt. Id.
Officer Santiago testified that Ward and appellant were standing together when they were first brought to his attention, and that they approached Santiago together after he sent word to them that he wanted to purchase crack cocaine. After taking Santiago's order, Ward returned to appellant and appeared to take something from him. Ward immediately returned to Santiago with a rock of crack cocaine. Shortly after the delivery, appellant was arrested while in possession of one of the bills Santiago used to pay for the cocaine. At the very least, this evidence is sufficient to connect appellant to the offense and therefore to corroborate Ward's testimony. The evidence as a whole, when viewed in the light most favorable to the verdict, rationally supports a finding of each element of the offense beyond a reasonable doubt. Considering all the evidence equally, including appellant's testimony, the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
The point of error is overruled and the judgment of conviction is affirmed.
Marilyn Aboussie, Justice
Before Chief Justice Yeakel, Justices Aboussie and Jones
Affirmed
Filed: October 29, 1998
Do Not Publish
nce, but his argument is couched in both legal and factual sufficiency terms. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, the appellate court does not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).