COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00053-CR
Juan Salgado Ortega a/k/a Juan § From Criminal District Court No. 3
Salgado
§ of Tarrant County (1245362D)
§ March 21, 2013
v.
§ Opinion by Justice Gardner
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Anne Gardner
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00053-CR
JUAN SALGADO ORTEGA A/K/A APPELLANT
JUAN SALGADO
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Juan Salgado Ortega appeals his conviction following a jury trial
for possession with intent to deliver a controlled substance. See Tex. Health &
Safety Code Ann. § 481.112(a) (West 2010). Appellant raises one issue, arguing
1
See Tex. R. App. P. 47.4.
2
that the evidence is insufficient to support his conviction because the testimony
of the informant was not adequately corroborated. We affirm.
II. Trial Testimony
Miguel Mendoza testified that he worked as a confidential informant for
several law enforcement agencies. He testified that he first heard of Appellant
having methamphetamine connections in 2011 and that he contacted Officer
Mike Bali of the Arlington Police Department, seeking approval to meet with
Appellant. Mendoza subsequently met with Appellant at Appellant’s place of
work, a grocery store and restaurant called El Ahorro, sometime in the summer
of 2011. Mendoza testified that he thereafter went with Appellant to Appellant’s
apartment to see the methamphetamine. Appellant made a phone call upon their
arrival, after which three men arrived and showed Mendoza what he believed to
be methamphetamine. Mendoza testified that Appellant wanted to do the drug
deal in the apartment. Mendoza said that he left the apartment to talk with
Officer Bali, leaving Appellant behind. Mendoza testified that he only had the
phone number of Appellant and did not have contact information for the other
men.
Mendoza testified that he then, at Officer Bali’s request, called Appellant to
change the location of the deal to the El Ahorro parking lot. Appellant, along with
the three men, went back to El Ahorro to make the deal. Mendoza testified that,
back in the El Ahorro parking lot, he notified Officer Bali that the
methamphetamine was present after one of the three men told him that it was in
3
the truck. Appellant then went inside El Ahorro. Mendoza testified that he left
the parking lot and called Appellant to move the deal down the block, again at
Officer Bali’s request. Appellant called Mendoza back and said that the three
men would meet down the block. Mendoza testified that the phone call from
Appellant was the last time he talked with Appellant.
On cross-examination, Mendoza testified that Appellant never said that he
had the drugs but that his friends had the drugs. Mendoza testified that when
one of the three men told him in the El Ahorro parking lot that the drugs were
present, Appellant was standing next to Mendoza. Mendoza also testified that
Appellant told him that he made a profit from this deal.
Officer Ray Morales testified that Officer Bali contacted him for assistance
in conducting a traffic stop of a suspected drug dealer. Officer Morales testified
that he found the described vehicle, a silver Ford F150, in the parking lot of El
Ahorro and that when the vehicle left the parking lot, he and another officer
stopped the vehicle. Officer Morales testified that three individuals were in the
truck and that officers found drugs in the truck. On cross-examination, Officer
Morales testified that Appellant was not in the truck when he stopped it, nor did
Appellant own it.
Officer Mike Bali testified that he had worked with Mendoza on several
occasions and believed him to be reliable and that Mendoza could accurately
identify methamphetamine. Officer Bali testified that he met with Mendoza about
Appellant’s methamphetamine connection a few days before Mendoza was
4
scheduled to meet with Appellant. Officer Bali also testified that he met with
Mendoza on the day Mendoza was going to meet Appellant and that he placed a
listening device on Mendoza so that he and three other officers could hear what
was going on. Officer Bali said that he followed Mendoza to El Ahorro, where
Mendoza met with Appellant. Officer Bali testified that he saw Mendoza with
Appellant at El Ahorro.
Officer Bali testified that after Mendoza met with Appellant at El Ahorro,
Mendoza called him and said that Appellant wanted them to go to a different
location. Officer Bali told Mendoza to go with Appellant. Officer Bali testified that
he followed Mendoza and Appellant to an apartment complex and that another
detective was in place to see Mendoza go into an apartment with Appellant.
Officer Bali testified that Mendoza left the apartment and called him, telling him
that three other men had shown Mendoza a kilogram of methamphetamine and
that the men and Appellant wanted to make the deal at the apartment complex.
Officer Bali testified that he directed Mendoza to tell Appellant and the men to
make the deal at El Ahorro.
Officer Bali testified that Appellant went back to El Ahorro in his blue
Dodge Durango, with a silver F150 following “right behind him.” Officer Bali said
that he saw Mendoza, Appellant, and the three men meet in the parking lot and
that Mendoza, after going to the F150, signaled that he saw the
methamphetamine. Officer Bali testified that Mendoza left the parking lot and
that he directed Mendoza to “call them back” and move the deal down the street.
5
Officer Bali testified that he watched as Appellant went inside El Ahorro and as
the other three men drove away in the silver F150. Officers stopped the silver
F150, arrested the three individuals inside the truck, and subsequently arrested
Appellant inside El Ahorro. Officer Bali testified that he seized
methamphetamine from the truck.2
On cross-examination, Officer Bali testified that the methamphetamine was
at the apartment while Mendoza was there, but he did not know who brought it
there. Officer Bali also testified that when the three men left the parking lot of El
Ahorro to make the deal and were subsequently arrested, Appellant was not with
them. He also agreed that he found no drugs in Appellant’s apartment in a
subsequent search. Officer Bali testified that, at the time of Appellant’s arrest,
Appellant did not have methamphetamine in his possession, but he later clarified
that he knew that the legal meaning of possession included custody and
management.
III. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
2
Sarah Skyles, a senior forensic chemist, later testified that the substance
taken from the silver Ford F150 was tested and found to be methamphetamine.
6
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
IV. Discussion
In his sole issue, Appellant contends that the evidence is insufficient to
support his conviction because there is insufficient evidence to corroborate
Mendoza’s informant testimony.
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A. Applicable Law
An individual commits an offense under health and safety code section
481.112(a) if the individual “knowingly . . . possesses with intent to deliver a
controlled substance listed in Penalty Group 1.” Tex. Health & Safety Code Ann.
§ 481.112(a).3 Appellant does not contest the individual elements of the crime,
only the sufficiency of the evidence connecting him to the commission of the
crime.
Convictions under health and safety code section 481 must comply with
code of criminal procedure article 38.141, which states:
(a) A defendant may not be convicted of an offense under
Chapter 481, Health and Safety Code, on the testimony of a person
who is not a licensed peace officer or a special investigator but who
is acting covertly on behalf of a law enforcement agency or under
the color of law enforcement unless the testimony is corroborated by
other evidence tending to connect the defendant with the offense
committed.
(b) Corroboration is not sufficient for the purposes of this
article if the corroboration only shows the commission of the offense.
Tex. Code Crim. Proc. Ann. art. § 38.141(a), (b) (West 2005). The court of
criminal appeals held in Malone that this language is substantially similar to the
language of Article 38.14, which covers the accomplice-witness standard for
corroboration.4 Malone v. State, 253 S.W.3d 253, 257–58 (Tex. Crim. App.
3
Penalty Group 1 includes methamphetamine. Id. § 481.102(6) (West
2010).
4
“A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
8
2008); see Tex. Code Crim. Proc. Ann. art. § 38.14. Thus, the same standard for
evaluating sufficiency of the evidence applies to both informant testimony and
accomplice testimony. Malone, 253 S.W.3d at 258. This standard requires that,
to corroborate accomplice testimony, some amount of non-accomplice evidence
must tend to connect the defendant to the commission of the crime in some way.
Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (holding that there
must be “some non-accomplice evidence tending to connect the defendant to the
offense”), cert. denied, 552 U.S. 1232 (2008). The non-accomplice evidence
need not, however, be sufficient by itself to convict the defendant beyond a
reasonable doubt. Malone, 253 S.W.3d at 257; Joubert, 235 S.W.3d at 731.
Applying this standard, the court in Malone “eliminate[d] the accomplice
testimony from consideration and then examine[d] the remaining portions of the
record to see if there [was] any evidence that tend[ed] to connect the accused
with the commission of the crime.” 253 S.W.3d at 257 (quoting Solomon v.
State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The court further held that
the remaining evidence must “simply link the accused in some way to the
commission of the crime.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim.
App. 2009) (quoting Malone, 253 S.W.3d at 257).
committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.” Tex. Code Crim. Proc. Ann. art. § 38.14 (West
2005).
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While a defendant’s mere presence at the scene of the crime is insufficient
to link the defendant to the commission of the crime, a defendant’s presence,
coupled with other suspicious circumstances, can be sufficient to tend to connect
a defendant to the commission of the crime. Malone, 253 S.W.3d at 257 (citing
Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993), and Brown v.
State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Suspicious circumstances
may include the defendant being in the company of the accomplice near the time
of the offense. Brown, 672 S.W.2d at 489 (holding that the “appellant’s presence
with the accomplice witness shortly before the commission of the offense” is a
suspicious circumstance); LeBlue v. State, No. 03-08-00278-CR, 2010 WL
2540490, at *4 (Tex. App.—Austin June 24, 2010, pet. ref’d) (mem. op., not
designated for publication) (citing Killough v. State, 718 S.W.2d 708, 711 (Tex.
Crim. App. 1986)). Moreover, police observations can sufficiently connect the
defendant with the offense. See Malone, 253 S.W.3d at 258–59 (holding that the
officer’s enlistment of informants, following the informants to the location of the
drug deal, watching the informants interact with the defendant, and then seizing
drugs from the informants that they did not have before, was sufficient evidence
to corroborate); Herron v. State, Nos. 01-04-00640-CR, 01-04-00641-CR, 2005
WL 1646043, at *5 (Tex. App.—Houston [1st Dist.] July 14, 2005, pet. ref'd)
(mem. op., not designated for publication) (holding that police watching the
appellant drive a separate car “in tandem” with the vehicle that contained drugs
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and then stand next to the vehicles during the drug deal was sufficient
corroborating evidence).
Additionally, when there are conflicting views of the evidence, appellate
courts should defer to how the fact-finder viewed the evidence. Simmons, 282
S.W.3d at 508 (holding that “when there are two permissible views of the
evidence (one tending to connect the defendant to the offense and the other not
tending to connect the defendant to the offense), appellate courts should defer to
that view of the evidence chosen by the fact-finder”). Thus, if a “rational fact-
finder could conclude that the non-accomplice [or non-informant] evidence tends
to connect [the] appellant to the offense,” the appellate court should hold that the
evidence is sufficient to corroborate the accomplice or informant testimony. Id. at
509 (internal quotations omitted).
B. Analysis
Appellant argues that the non-informant evidence is insufficient to
corroborate Mendoza’s informant testimony because it does not tend to connect
Appellant to the crime. We therefore set aside Mendoza’s testimony to
determine whether the remaining evidence tends to connect Appellant to the
crime. See Malone, 253 S.W.3d at 257 (holding that the court must eliminate the
accomplice testimony and determine if the remaining evidence tends to connect
the accused with the commission of the crime). If any of this remaining evidence
tends to connect Appellant to the offense, it is sufficient to corroborate
Mendoza’s testimony. See Simmons, 282 S.W.3d at 508–09 (holding that non-
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accomplice testimony “must simply link the accused in some way to the
commission of the crime”); Joubert, 235 S.W.3d at 731 (holding that “some non-
accomplice evidence [must tend] to connect the defendant to the offense”).
Setting aside Mendoza’s testimony, the remaining evidence shows that
Officer Bali had previously used Mendoza as an informant on several occasions.
He saw Mendoza with Appellant at El Ahorro and followed them to an apartment
complex. After Officer Bali directed Mendoza to change the location of the drug
deal from the apartment to the El Ahorro parking lot, he watched as Appellant
returned to El Ahorro, the silver F150 containing the drugs following “right
behind.” At El Ahorro, Officer Bali watched as Appellant met with Mendoza and
the three men and as Appellant stood by when Mendoza signaled the drugs were
present. Officer Bali directed Mendoza to move the deal to a location down the
street, after which he watched as Appellant went inside El Ahorro and as the
silver F150 drove toward the new location. Officers stopped the truck and seized
methamphetamine.
In Malone, a narcotics investigator used two informants to purchase crack
cocaine from Malone. 253 S.W.3d at 255. The investigator followed them to
Malone’s house, watching them along the way. Id. The investigator watched the
informants interact with Malone outside of Malone’s house and subsequently go
inside with him. Id. After an hour and twenty minutes, the informants left the
house, returned to the police station, and the investigator found that both
informants had several “cookies” of crack. Id. The court of criminal appeals held
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that the investigator’s observations corroborated the informants’ testimony
because “[t]aken as a whole, the non-covert agent evidence shows more than
mere presence. The jury could have rationally found that the corroborating
evidence sufficiently tended to connect Malone to the delivery of the crack
cocaine.” Id. at 259. In Herron, police observed Herron at the house where the
drugs were and where the drug deal was supposed to happen. 2005 WL
1646043, at *1. An undercover officer changed the location of the drug deal from
the house to a gas station. Id. Police watched as Herron drove from the house
to the gas station “in tandem” with the vehicle the drugs were in. Id. at *4. At the
gas station, police saw Herron get out and stand next to his car as the drug deal
took place, “but [he] did not pump gas or go toward the store.” Id. The court held
that the police observations, “considered in their entirety, are sufficient to tend to
connect appellant with the offense committed.” Id. at *5.
Here, the collective police observations of Appellant tend to connect him to
the crime, namely his many interactions with Mendoza and his travel from one
location to another each time Officer Bali directed Mendoza to change the place
for the drug deal. See Malone, 253 S.W.3d at 259 (holding that the police
observations of informants interacting with Malone, going in his house with him,
and the informants having crack after leaving, taken as a whole, showed more
than mere presence and, therefore, could have tended to connect Malone to the
crime); Herron, 2005 WL 1646043, at *4–5 (holding that police observations of
Herron being at the original location of the drug deal, driving in tandem with the
13
drugs to a new drug deal location, and then standing by while the drug deal took
place, considered in their entirety, were sufficient to tend to connect Herron to the
crime). Additionally, Appellant’s presence with Mendoza throughout is itself
suspicious. See Brown, 672 S.W.2d at 489 (holding that being in the company of
the accomplice near the time of the offense is a suspicious circumstance).
Appellant argues that Officer Bali’s testimony does not tend to connect him
to the crime because Officer Bali does not speak Spanish, meaning that Officer
Bali did not understand the conversations he heard over Mendoza’s listening
device. Nevertheless, Officer Bali’s testimony places Appellant near the scene of
the crime, in the informant’s company, and traveling to a new drug deal location
in tandem with the drugs. Considered together, this evidence tends to connect
Appellant to the crime. See Malone, 253 S.W.3d at 257 (holding that presence,
coupled with suspicious circumstances, can tend to connect a defendant with the
crime); Brown, 672 S.W.2d at 489 (holding that being in the company of the
accomplice near the time of the offense is a suspicious circumstance); Herron,
2005 WL 1646043, at *5 (holding that driving in tandem with the drugs to a new
drug deal location, along with other factors, tended to connect Herron to the
crime). It is therefore not outcome determinative in this case that Officer Bali
could not understand the Spanish-language conversations between Appellant
and Mendoza.
A rational jury could conclude that the evidence tended to connect
Appellant to the commission of the crime. See Malone, 253 S.W.3d at 259
14
(holding that jurors can rationally find that evidence showing more than mere
presence sufficiently tends to connect a defendant to the crime); see also
Simmons, 282 S.W.3d at 508 (holding that the evidence must link the accused to
the crime in some way and show that rational jurors could conclude that the
evidence tends to connect the accused to the crime). While the evidence may
have alternative permissible views that do not tend to connect Appellant to the
offense, the jury viewed the evidence as tending to connect Appellant to the
offense, and we must defer to that view. Simmons, 282 S.W.3d at 508 (holding
that appellate courts should defer to the view of the facts chosen by the fact-
finder). Applying the appropriate standard of review, we hold that the evidence is
sufficient to support Appellant’s conviction, and we overrule Appellant’s issue.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895,
912; see also Malone, 253 S.W.3d at 257; Joubert, 235 S.W.3d at 731.
V. Conclusion
Having overruled Appellant’s sole issue on appeal, we affirm the trial
court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 21, 2013
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