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Opinion filed May 18, 2006
In The
Eleventh Court of Appeals
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No. 11-04-00195-CR
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JUAN MIGUEL CORTEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR29137
O P I N I O N
The jury convicted Juan Miguel Cortez of the offense of possession with intent to deliver less than one gram of cocaine. The jury assessed punishment at confinement in a state jail facility for two years and a $10,000 fine. We affirm.
Appellant presents two points of error for review. In the first point, he asserts that the trial court abused its discretion by permitting the testimony of a witness who had violated Athe rule.@ Appellant complains that Detective Robby Mobley was allowed to testify even though he had violated the witness sequestration rule by talking to another witness about that witness=s testimony. Tex. R. Evid. 614 (the Rule); Tex. Code Crim. Proc. Ann. art. 36.03 (Vernon Supp. 2005), arts. 36.05, 36.06 (Vernon 1981). When the State called Detective Mobley to testify, defense counsel objected that he had Aheard this officer talking to [witness Jackie Nolan Kocks] about what [Kocks] had just testified about.@ Defense counsel requested that Detective Mobley not be allowed to testify. The trial court indicated on the record that the Rule had been invoked but that it had failed to admonish the witnesses in accordance with the Rule. The prosecutor had also failed to instruct the State=s witnesses not to discuss the case or their testimony. Because the witnesses had not been admonished, the trial court refused to exclude Detective Mobley=s testimony but ruled that defense counsel could cross-examine Detective Mobley about the conversation. However, neither Detective Mobley nor Kocks was asked about the conversation.
We hold that the trial court did not abuse its discretion by permitting Detective Mobley to testify after violating the Rule. See Bell v. State, 938 S.W.2d 35, 50-51 (Tex. Crim. App. 1996). The witnesses had not been admonished pursuant to the Rule. Furthermore, nothing in the record shows that Detective Mobley was influenced by the conversation with Kocks. See id. Appellant=s first point is overruled.
In the second point, appellant challenges the factual sufficiency of the evidence. In order to determine if the evidence is factually sufficient to support appellant=s conviction, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
The record shows that Kocks was working with the narcotics division of the Midland Police Department as a confidential informant. Kocks testified about a drug deal that he made with Alfredo Gonzalez and appellant. Kocks=s testimony was corroborated in part by Detective Mobley and by an audio recording of a telephone conversation between Gonzalez and Kocks. During that conversation, Kocks told Gonzalez that he had located a buyer for the cocaine that Gonzalez wanted to sell. Kocks told Gonzalez that his buyer wanted a couple of ounces. Gonzalez told Kocks that he would take care of it and that appellant would have to set the price for the cocaine. The next day, appellant and Kocks discussed the sale of the cocaine. Appellant held up a scale and a baggie containing cocaine. Appellant showed Kocks that the cocaine weighed one-fourth of an ounce and said, AI=m going to do this right now, and if this all goes good, there=ll be more where this came from.@ Kocks testified that appellant had a second baggie of cocaine in his other hand. Appellant, Gonzalez, and Kocks got in appellant=s pickup and drove to Kocks=s house. Kocks went inside and called Detective Mobley. Per Detective Mobley=s instructions, Kocks came back outside and told appellant and Gonzalez that there was no deal because the buyer was not satisfied with the amount and wanted more cocaine. Appellant left angry.
Shortly thereafter, police conducted a traffic stop of appellant and Gonzalez. Inside appellant=s pickup, Detective Mobley found a small amount of cocaine scattered on the passenger=s side of the pickup, both on the seat and the floorboard. More cocaine was found in Gonzalez=s cup; it was dissolving in his drink. However, a plastic baggie containing 0.72 grams of cocaine was recovered from the bottom of the cup. The total amount of cocaine recovered from the pickup was 0.78 grams.
Gonzalez testified on behalf of appellant. At the time of appellant=s trial, Gonzalez had been convicted and was on probation for possession of the same cocaine at issue in this case. Gonzalez testified that the cocaine was his and that it was for his personal use. He claimed that appellant knew nothing about the cocaine.
However, the jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979), art. 36.13 (Vernon 1981). The jury was free to believe the testimony indicating that appellant, acting as a party or otherwise, knowingly or intentionally possessed with intent to deliver less than one gram of cocaine.
After reviewing all of the evidence in a neutral light, we hold that the evidence is factually sufficient to support the jury=s verdict. The evidence supporting guilt is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the evidence contrary to the verdict so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Appellant=s second point is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
May 18, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.