Jeffery Scott Estrada v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-17-00245-CR
________________________

JEFFERY SCOTT ESTRADA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 154th District Court
Lamb County, Texas
Trial Court No. DCR-5428-16; Honorable Felix Klein, Presiding

February 19, 2019

OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Following a plea of not guilty, Appellant, Jeffery Scott Estrada, was convicted by a

jury of engaging in organized criminal activity, a first degree felony,1 and sentenced to

1 TEX. PENAL CODE ANN. § 71.02(a)(5) (West Supp. 2018). As applicable to the facts of this case,

an offense under section 71.02(a) is one category higher than the most serious predicate offense listed
under subsection (a) that was committed. § 71.02(b). The “most serious” predicate offense allegedly
committed in this case was delivery of methamphetamine of more than 200 grams but less than 400 grams;
TEX. HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2017), punishable as a special punishment felony,
by imprisonment for life or for a term of not more than 99 years or less than 10 years and a fine not to
exceed $100,000. Id. Accordingly, the offense in this case was punishable by imprisonment for life or for
a term of not more than 99 years or less than 15 years, without the option of a fine. TEX. PENAL CODE ANN.
§ 71.02(b)(3) (West Supp. 2018).
seventeen years confinement. By two issues, Appellant contends (1) the evidence is

insufficient to establish that he committed the offense of engaging in organized criminal

activity as alleged in the indictment and (2) the trial court erred in admitting his written

statement and an audio recording of his interrogation, over objection, because he did not

knowingly, intelligently, and voluntarily waive his rights before making the oral and written

statements. We reverse based upon an unassigned error and remand for a new trial;2

however, in the interest of justice and because the remaining issues could afford

Appellant greater relief,3 we have reviewed, but overrule issues one and two.

BACKGROUND

On May 8, 2014, Joaquin Coronado, Appellant’s cousin, and Mandy McKinley were

arrested in Plainview. Mandy had methamphetamine on her person and Joaquin had an

outstanding warrant. While in custody, they were interviewed by Agent Jeffrey Ashburn

of the Criminal Investigation Division of the Texas Department of Public Safety regarding

a methamphetamine distribution enterprise in Littlefield.

According to Mandy, an admitted addict, she met Joaquin in January 2014, while

he was incarcerated with her ex-husband. In March 2014, Joaquin subsequently sought

her out to see if she could provide him with methamphetamine. The two used

methamphetamine together and Joaquin began staying with her. At the time, Mandy had

a source for obtaining methamphetamine, but when her source was arrested in mid-

March, she contacted her niece in Amarillo to find a new source. Mandy’s niece put her

in touch with a temporary source and eventually connected her and Joaquin with Kenneth

2 See Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex. Crim. App. 2006).

3 See Darcy v. State, 07-13-00297-CR, 2015 Tex. App. LEXIS 6593, at *3 (Tex. App.—Amarillo

June 25, 2015), rev’d on other grounds, 488 S.W.3d 325, 326 (Tex. Crim. App. 2016).
2
Charles Dahl in mid-to-late March as their exclusive source. At first, Kenneth was

delivering “quarters” (seven grams) to Joaquin and Mandy. As the frequency of their trips

to Amarillo increased, so did the weight of the methamphetamine provided by Kenneth.

Mandy testified that for “a couple of weeks,” they drove to Amarillo “every day,” taking

alternate routes to avoid suspicion. Their routine was to purchase one ounce (28 grams)

on one day and two ounces the next day and they alternated between one and two ounces

thereafter. They bought the methamphetamine in bulk and she would weigh it. At

Joaquin’s insistence, each ounce was divided into sixteenths (1.75 grams) which he

would then “front” to others who would sell it for him.

Pursuant to a series of questions from the prosecutor on the business of drug

dealing, Mandy explained that “fronting” the methamphetamine meant providing the

product to group members who in turn would sell it and bring back the money.4 She

disagreed with Joaquin’s business practice of “fronting” because members of the group

were using most of the methamphetamine and not bringing back enough cash to

replenish their supply of methamphetamine. At times, she was forced to use her own

money to “re-up” the supply. By April 2014, she became frustrated when strangers began

coming and going from her apartment to obtain methamphetamine from Joaquin.

Mandy met Appellant in March 2014, through Joaquin, and the three began using

methamphetamine together. She recalled Appellant accompanying her and Joaquin to

Amarillo on one trip to buy methamphetamine. She also witnessed Joaquin give

Appellant some of the methamphetamine.

4 Generally, a “dime” or a tenth (0.10) of a gram sold for ten dollars, a “dove” or two tenths (0.20)

of a gram sold for twenty dollars, a “sixteenth” or one and three quarters (1.75) of a gram sold for one
hundred dollars, and an “eight ball” or three and a half (3.5) grams sold for two hundred dollars.
3
 Appellant, also an admitted methamphetamine user, either purchased or did favors

for Joaquin in exchange for methamphetamine. Appellant would keep some for personal

use and at times, sold some for profit to pay his bills and make his car payment. He

claimed he obtained methamphetamine in an amount of 1.75 grams at a time. On two

occasions, Joaquin and Mandy enlisted him to cash forged payroll checks for profit. In

that enterprise, Appellant kept more than half of the cash as his profit.

Joaquin and Mandy were arrested on May 8, 2014. Almost six weeks later, on

June 24, 2014, Appellant was arrested for possession of methamphetamine. More than

a week later, on July 2nd, while still in custody, he was interviewed by Agent Ashburn

regarding distribution of methamphetamine between March 2014 and May 2014.

During the interview, which lasted over two hours, Appellant was properly

admonished regarding his Miranda rights on two separate occasions. Appellant admitted

he was a methamphetamine addict and that Joaquin controlled the methamphetamine

distribution enterprise. At the time of Appellant’s interview, several members of the

criminal combination alleged by the State were already in custody.

Over the course of the interview, Appellant admitted that he acquired

methamphetamine from Joaquin in exchange for favors. Appellant also admitted he was

enlisted to cash the two forged payroll checks for Joaquin with fake identification provided

by Mandy and that after cashing the checks, he kept a large portion of the cash for

himself.5

5 After Appellant cashed the two checks, he discovered that two of his sons had become involved

with Joaquin’s enterprise and they had a falling out.

4
 Appellant denied he was selling methamphetamine for Joaquin and claimed the

methamphetamine provided to him was for his personal use. He later admitted he sold

some of the methamphetamine for profit. He described how he would buy 1.75 grams of

methamphetamine at a time for eighty dollars and then resell it for one hundred dollars.

He also named at least three persons to whom he sold methamphetamine.

Appellant further admitted traveling to Amarillo with Joaquin and Mandy on one

occasion to meet Mandy’s source at a truck stop. He denied seeing the source but knew

they had acquired methamphetamine because they did not have any with them when they

left for Amarillo. When asked by Agent Ashburn if Appellant would agree that Joaquin

“pretty much ran the show here in Littlefield as far as selling meth,” Appellant agreed that

Joaquin “was the man.”

In exchange for Agent Ashburn notifying the district attorney of Appellant’s

cooperation, Appellant agreed to make a written statement describing the

methamphetamine operation and the check-cashing scheme. Appellant acknowledged

that there were no guarantees in exchange for his cooperation. In his written statement,

Appellant implicated “Felix, Ashley, and Tawny” as other participants “in the deal” with

Joaquin. After writing his statement, Appellant affixed his signature to it. He also

identified other associates in a photo lineup.

The evidence outlined a methamphetamine distribution ring headed by Joaquin.

He and his co-conspirators, including Appellant and Mandy, would travel to Amarillo from

Littlefield to obtain methamphetamine from Kenneth to be distributed to surrounding

towns. Quantities transported by Joaquin and his associates ranged from ounces to

pounds of methamphetamine.

5
 In an eleven-page indictment, returned on April 12, 2016, Appellant was charged

with the felony offense of engaging in organized criminal activity. In relevant part, the

indictment alleged that Jeffery Scott Estrada:

[O]n or about and between the 1st day of March, 2014 through the 15th day
of May, 2014, and before the presentment of this indictment, in [Lamb
County, Texas], did:

Then and there knowingly deliver or possess with the intent to deliver a
controlled substance in Penalty Group 1, to-wit: Methamphetamine, in an
amount of 200 grams or more but less than 400 grams.

And the defendant did then and there commit said offense with the intent to
establish, maintain, or participate in a combination or in the profits of a
combination, said combination consisting of three or more of the following
individuals: Kenneth Charles Dahl, Joaquin Manuel Coronado, Mandy Beth
McKinley, Celina Laiz Rodriguez, Ashley Kohl Rios, Eliseo Joel Martinez,
Santiago Vizcarra, Jr., Isidro Lopez, Rodney Trevino, Jr., Summer McFadin,
Felix Delarosa, Gillyan Goodwin, Natasha Rodriguez, Amanda Silvas,
William Grant, Tawny Castillo and Jonathan Estrada, who collaborated in
carrying on the heretofore criminal activity, by agreeing with one another
that they would engage in conduct constituting said offense, and each
individual named above, together with one or more of those individuals,
performed an overt act in furtherance of said agreement, to-wit: [whereupon
the indictment lists ten pages of “overt acts.”]

At no time did Appellant move to quash the indictment or otherwise object to the

indictment on the basis that possession with intent to deliver is not a predicate offense for

purposes of the offense of engaging in organized criminal activity. 6 At trial, when the jury

charge tracked the indictment, Appellant again did not object on that basis. After

submission of the case to the jury, it returned a general verdict of guilty as to the offense

of engaging in organized criminal activity and then later assessed Appellant’s punishment

at seventeen years confinement in the Institutional Division of the Texas Department of

Criminal Justice. This appeal followed.

6 See infra pp. 8-9.
6
 ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

A person commits the offense of engaging in organized criminal activity “if, with

the intent to establish, maintain, or participate in a combination or in the profits of a

combination . . . the person commits or conspires to commit one or more of the following:

[enumerated predicate offenses].” TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2018).

The predicate offenses are then listed in the eighteen enumerated subsections to section

71.02(a). The subsection relevant to this particular prosecution is subsection five which

provides as follows:

(5) unlawful manufacture, delivery, dispensation, or distribution of a
controlled substance or dangerous drug, or unlawful possession of a
controlled substance or dangerous drug through forgery, fraud,
misrepresentation or deception;

TEX. PENAL CODE ANN. § 71.02(a)(5).

The gravamen of the offense of engaging in organized criminal activity is a

circumstance surrounding the conduct—the existence or creation of a combination that

collaborates in carrying on criminal activities. O’Brien v. State, 544 S.W.3d 376, 391 (Tex.

Crim. App. 2018). A “combination” requires three or more persons who collaborate in

carrying on criminal activities. § 71.01(a) (West Supp. 2018). “Profits” means property

constituting or derived from any proceeds obtained, directly or indirectly, from an offense

listed in section 71.02. § 71.01(c) (West Supp. 2018). “Conspires to commit” means that

a person agrees with one or more persons that they or one or more of them engage in

conduct that would constitute the offense and that person and one or more of them

perform an overt act in pursuance of the agreement. An agreement constituting

conspiring to commit may be inferred from the acts of the parties. § 71.01(b) (West Supp.

2018). The overt act “need not be criminal in itself” and “acts that suffice for party

7
liability—those that encourage, solicit, direct, aid, or attempt to aid the commission of the

underlying offense—would also satisfy the overt act element of section 71.02.” Otto v.

State, 95 S.W.3d 282, 284 (Tex. Crim. App. 2003).

CHARGE ERROR—UNASSIGNED ISSUE

Here, the predicate offenses alleged in both the indictment and the jury charge for

the offense of engaging in organized criminal activity were (1) delivery of a controlled

substance, to-wit: methamphetamine, in an amount of 200 grams or more but less than

400 grams and (2) possession with intent to deliver, a controlled substance, to-wit:

methamphetamine, in an amount of 200 grams or more but less than 400 grams. The

indictment further alleged that Appellant committed one or more of these predicate

offenses as part of a collaboration of three or more persons “agreeing with one another

that they would engage in conduct constituting said offense.”

As a matter of unassigned error, we note that possession with intent to deliver is

not a predicate offense enumerated in section 71.02(a). See Walker v. State, No. 07-16-

00245-CR, 2017 Tex. App. LEXIS 2817, at *5-6 (Tex. App.—Amarillo March 30, 2017,

pet. granted) (mem. op., not designated for publication); State v. Foster, No. 06-13-

00190-CR, 2014 Tex. App. LEXIS 5877, at *4 (Tex. App.—Texarkana June 2, 2014, pet.

ref’d) (mem. op., not designated for publication) (stating that “the terms of [section

71.02(a)(5)] are not violated by simply possessing a controlled substance with the intent

to deliver it” and concluding the trial court properly quashed an indictment alleging

organized criminal activity based on the predicate offense of simply possessing a

controlled substance with intent to deliver). Simple possession of a controlled substance

is a predicate offense only if committed through forgery, fraud, misrepresentation, or

deception. See § 71.02(a)(5). Additionally, “possession with intent to deliver” cannot be
8
incorporated into “delivery” to legitimize an incorrect predicate offense. See Hughitt v.

State, 539 S.W.3d 531, 537 (Tex. App.—Eastland 2018, pet. granted). An incorrectly

alleged predicate offense is fundamental error where, as here, it cannot be ascertained

whether the jury voted to convict based upon the proper predicate offense of delivery of

a controlled substance or the improper predicate offense of possession with intent to

deliver. See Fraser v. State, 523 S.W.3d 320, 342 (Tex. App.—Amarillo 2017, pet.

granted) (finding that when a jury charge allows for conviction on a theory not supported

by the law, the verdict cannot stand).

Although the Court of Criminal Appeals has determined that the enumerated

predicate offenses listed under section 71.02(a) are merely alternate manner and means

of committing the offense of engaging in organized criminal activity and are not elements

of the primary offense; O’Brien, 544 S.W.3d at 391, such a distinction is of little

consequence where, as here, the jury charge allows for a conviction based upon facts

which do not constitute the offense charged. It is simply a fundamental constitutional

principle that one cannot be convicted for something that does not constitute a criminal

offense. Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977) (holding that “if it

is the manner and means by which an act is done that makes the otherwise innocent act

a criminal offense, it is necessary to allege facts showing the manner and means which

make the act a criminal offense”); Hughitt, 539 S.W.3d at 536 (vacating a section 71.02(a)

conviction where the predicate offense was possession of a controlled substance with

intent to deliver).

Furthermore, the error need not be preserved through objection by Appellant and

it may be raised sua sponte by a reviewing court as unassigned error. Walker, 2017 Tex.

App. LEXIS 2817, at *7 (finding charge error allowing a jury to convict based on facts that
9
do not constitute an offense to be egregiously harmful and thus warranting reversal of the

judgment based on unassigned error); Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex.

Crim. App. 2006) (holding same).

Because the jury charge in this case allows for a conviction based upon facts that

do not constitute the offense of engaging in organized criminal activity, Appellant’s

conviction cannot stand. Accordingly, based on this unassigned error, the judgment of

the trial court is reversed.

PROPER REMEDY

In Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), the Texas Court of

Criminal Appeals held that if an appellate court concludes the evidence supporting a

conviction is legally insufficient, the court is not necessarily limited to ordering an acquittal

but may instead reform the judgment to reflect a conviction as to any lesser-included

offense and remand for a new punishment hearing. Id. at 431-32. In Arteaga v. State,

521 S.W.3d 329, 340 (Tex. Crim. App. 2017), the Court further expanded the application

of Bowen and its progeny to a cause involving jury-charge error. While the error in this

case can be described as jury-charge error, unlike the facts in Arteaga, the error here

deals with the merits of the offense itself—not just a fact affecting the appropriate range

of punishment. The error in the charge at hand permitted the jury to convict Appellant of

the offense of engaging in criminal activity based upon a theory authorized by law and a

theory not authorized by law. This difference sufficiently distinguishes the opinion in

Arteaga from the facts of this case and renders application of Bowen and its progeny

inappropriate to the facts of this case.

10
 Here, the verdict rendered by the jury was a general verdict—meaning we are

unable to determine whether some or all of the jurors believed Appellant was guilty of

engaging in organized criminal activity based upon a theory authorized by law (delivery

of a controlled substance) or upon a theory not authorized by law (possession with intent

to deliver a controlled substance). Because the record supports both possibilities, the

appropriate remedy is not to acquit or to reform the judgment of conviction. The

appropriate remedy is to reverse and remand for a new trial. See Stromberg v. California,

283 U.S. 359, 367-70, 51 S. Ct. 532, 75 L. Ed. 1117 (1931) (holding remand for a new

trial to be the appropriate remedy when conviction was based on a general jury verdict

encompassing both a constitutional and an unconstitutional theory of conviction); Fraser,

523 S.W.3d at 335-36 (holding remand for a new trial was appropriate where erroneous

jury charge allowed for conviction based upon a theory authorized by law and a theory

not authorized by law). Therefore, the appropriate remedy in this case is to reverse the

conviction and remand this cause to the trial court for a new trial. While our disposition

of this unassigned error renders unnecessary the consideration of Appellant’s two issues,

because we are remanding this matter to the trial court for further proceedings, in the

interest of justice, we will address Appellant’s issues to determine if they would afford him

any greater relief. See TEX. R. APP. P. 47.1.

Addressing Appellant’s issues in a logical rather than numerical order, we need to

first review his second issue by which he challenges the suppression of certain evidence,

before we review his first issue by which he challenges the sufficiency of the evidence to

support his conviction.

11
 MOTION TO SUPPRESS CONFESSION—ISSUE TWO

By his second issue, Appellant contends the trial court erred by admitting, over

objection, a written statement and audio recording of his interrogation because he did not

knowingly, intelligently, and voluntarily waive his rights before making those statements.

At the hearing on his motion to suppress, Appellant testified he had been using

methamphetamine three to four times a day several weeks before his arrest and he was

not in his right mind when he gave his oral and written statements more than a week after

last using methamphetamine. He claimed he was still under the influence of

methamphetamine when he gave his statements and did not remember voluntarily

providing the contents of his statements. During cross-examination, although he claimed

not to be an expert, he testified it takes three days to get methamphetamine out of his

system after a “regular hit”; but, he was using greater quantities.

Agent Ashburn, a nineteen-year veteran of the Department of Public Safety,

testified he would not have conducted an interview with an intoxicated suspect. To do so

would have tainted the information. According to Agent Ashburn, Appellant knew where

he was and responded appropriately to all questions. In his experience, an intoxicated

suspect would have been jittery, unable to sit still, and would have rambled. Appellant

did not exhibit any of those characteristics. Neither did Appellant appear tired, exhausted,

or sleepy during the lengthy interview.

The trial court acknowledged reviewing two hours and ten minutes of Appellant’s

taped interview. In denying the motion to suppress, the court found that Appellant was

properly admonished and understood his rights. His interview was coherent, he

understood what he was doing, and he gave appropriate responses. Appellant “was in

12
full control of his mental faculties” and “wasn’t influenced any way that rendered his

confession involuntary.”

We review a trial judge’s ruling on a motion to suppress under a bifurcated

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First,

we afford almost total deference to a trial judge’s determination of historical facts that the

record supports especially when the trial judge’s findings are based on an evaluation of

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). We review the trial court’s findings in the light most favorable to his ruling and

determine whether the evidence supports those findings. State v. Kelly, 204 S.W.3d 808,

818 (Tex. Crim. App. 2006). Second, we review a trial court’s application of the law to

the facts de novo. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We will

sustain the trial court’s ruling if that ruling is reasonably supported by the record and is

correct on any theory of law applicable to the case. Id.

Article 38.22, section 2(b) of the Texas Code of Criminal Procedure provides that

no written or oral statement of an accused is admissible unless the accused is given

statutory warnings and “knowingly, intelligently, and voluntarily” waives those rights. TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 2(b) (West 2018). Whether a confession was

voluntarily made is to be determined by the totality of the circumstances. Delao v. State,

235 S.W.3d 235, 239 (Tex. Crim. App. 2007). An accused’s intoxication is a factor to

consider in evaluating the voluntariness of a confession. Leza v. State, 351 S.W.3d 344,

351 (Tex. Crim. App. 2011); Bell v. State, No. 07-14-00028-CR, 2015 Tex. App. LEXIS

13
2211, at *3 (Tex. App.—Amarillo March 9, 2015, no pet.) (mem. op., not designated for

publication).

Evidence at the suppression hearing showed that Appellant had been in custody

for eight days prior to his interview and, therefore, presumably since last using

methamphetamines.7 When he gave his oral and written statements, he was properly

advised of his rights, and although at the hearing on his motion to suppress, he claimed

he was still under the influence of methamphetamines and could not have voluntarily

made his statements, he never made those claims during his interview.

In addition to the testimony presented at the suppression hearing, the trial court

listened to Appellant’s interview and determined that his statements were voluntarily

made. This court’s review of the interview is consistent with the trial court’s finding that

Appellant’s statements were voluntarily made. Eight days had lapsed since Appellant

had last used methamphetamine. Appellant was clear and coherent in his answers to

Agent Ashburn’s questions. He was cooperative and did not ramble. There was no

indication of coercion or intimidation during the interview. Appellant made an independent

and informed decision to give an oral and written statement to Agent Ashburn. Applying

the appropriate standard of review, we find the trial court’s finding that Appellant’s

confession was voluntary is reasonably supported by the record and there was no error

in admitting the confession during trial. Issue two is overruled.

7 Numerous references in the record are made to “nine” days having passed since Appellant’s

arrest on June 24, 2014, and his custodial interrogation on July 2, 2014. However, the time period between
those dates is eight days.
14
 SUFFICIENCY OF THE EVIDENCE—ISSUE ONE

By his first issue, Appellant contends the evidence is insufficient to establish the

elements of engaging in organized criminal activity. He emphasizes that the State failed

to prove his intent to participate in the combination as well as his co-conspirators’ intent

to participate in the combination. We disagree.

The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). We consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, any

rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

We give deference to the responsibility of the trier of fact to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each

fact need not point directly and independently to the appellant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction. Id.

In evaluating the sufficiency of the evidence, we compare the elements of the

offense as defined by a hypothetically correct jury charge to the evidence adduced at trial.

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953

15
S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of the

evidence in the record, both direct and circumstantial and whether properly or improperly

admitted. Jenkins, 493 S.W.3d at 599; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). When the record supports conflicting inferences, we presume the fact finder

resolved the conflicts in favor of the prosecution and defer to that determination. Jackson,

443 U.S. at 326.

As discussed hereinabove, and as defined by a hypothetically correct jury charge

under the indictment in this case, the elements of the offense of engaging in organized

criminal activity are as follows:

(1) with the intent to establish, maintain, or participate in a combination or
in the profits of a combination;

(2) the accused commits or conspires to commit;

(3) delivery of a controlled substance.

TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2018).8

While the State was required to prove not only that Appellant intended to establish,

maintain, or participate in a group of three or more persons, it was also required to

establish that the members of that group intended to work together in a continuing course

of criminal activities. O’Brien, 544 S.W.3d at 391; Dowdle v. State, 11 S.W.3d 233, 235-

36 (Tex. Crim. App. 2000); Munoz v. State, 29 S.W.3d 205, 208 (Tex. App.—Amarillo

2000, no pet.). The continuing course of criminal activities must encompass more than

one crime or criminal episode. Munoz, 29 S.W.3d at 208. There must be an agreement

8 As a factual issue necessary to establish the applicable range of punishment, the jury was also

required to determine the applicable weight of the controlled substance delivered.

16
by the participants to act together in the continuing course of activity and it is not

necessary that the participants know each other’s identity or their particular role in the

criminal activity. TEX. PENAL CODE ANN. § 71.01(a)(1).

A person acts with intent with respect to the nature of his conduct or to a result of

his conduct when it is his conscious objective or desire to engage in the conduct or cause

the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Direct evidence of a culpable

mental state is not required and may be proven by circumstantial evidence. Hart v. State,

89 S.W.3d 61, 63 (Tex. Crim. App. 2002). “A jury may infer intent from any facts which

tend to prove its existence, including the acts, words, and conduct of the accused, and

the method of committing the crime . . . . This has been the rule in Texas for over 100

years.” Id. at 64.

Here, the indictment alleged that Appellant committed the offense with the intent

to establish, maintain, or participate in a combination or in the profits of a combination

with more than three individuals, including Kenneth, Joaquin, and Mandy,9 who

collaborated in carrying on the criminal activity by agreeing with one another to engage

in conduct constituting the offense and by performing an overt act in furtherance of that

agreement. The indictment listed numerous overt acts as to each individual, including

Appellant, of possession, purchases, and delivery of methamphetamine, and the

proceeds received therefrom. The indictment also contained references to handguns and

forged check-cashing as part of the criminal enterprise.

In his oral and written statements, Appellant admitted to acquiring

methamphetamine from Joaquin on multiple occasions, whether by purchase or in

9 Including Appellant, the enterprise involved eighteen individuals.
17
exchange for favors. He also admitted he would resell the methamphetamine for profit to

pay his bills. Appellant also confessed to being part of a check-cashing scheme with

Mandy and Joaquin in which he cashed payroll checks with false identification provided

by Mandy on at least two occasions. In each instance, Appellant kept more than half of

the cash as his share of the profit. Kenneth, Joaquin, Mandy, and Appellant operated as

a “combination” (three or more persons) for profit and collaborated in criminal activities,

and from the evidence, it was reasonable to conclude that it was Appellant’s conscious

objective to engage in those illegal activities.

The trial court granted testimonial immunity to four of Appellant’s co-conspirators:

(1) Isidro Lopez, (2) Mandy Beth McKinley, (3) William Grant, and (4) Celina Rodriguez.

Except for William Grant, who failed to show at trial, Isidro, Mandy, and Celina all testified

regarding Appellant’s participation in the combination by selling methamphetamine for

profit.10

Although reluctant to do so, Mandy offered testimony that was illustrative of the

“combination’s” intent as well as Appellant’s guilt. She testified that beginning in March

2014, she and Joaquin began using methamphetamine together. Using Kenneth as their

source in Amarillo to obtain methamphetamine, she and Joaquin began making frequent

trips to acquire methamphetamine. During that same time period, she met Appellant.

She confirmed that Appellant made at least one trip to Amarillo with them and she

observed Joaquin provide Appellant some of the methamphetamine for distribution to

10 As accomplices, their testimonies required corroboration by other evidence tending to connect
Appellant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008). Other evidence tending to connect Appellant to the offense included his
oral and written statements and Agent Ashburn’s testimony as well as Appellant’s cell phone, the contents
of which were obtained with a search warrant. The jury was properly instructed on accomplice-witness
testimony.
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others. Mandy testified she never heard Joaquin and Appellant enter into an agreement

to distribute methamphetamine; however, she also testified that Appellant was Joaquin’s

“right-hand man”—a claim vehemently denied by Appellant when he gave his statement.

Isidro Lopez was also in the business of selling drugs before Joaquin was released

from jail. He was arrested on April 8, 2014. He testified that he went to Amarillo with

Joaquin at least seven times beginning in March 2014. On all but one of those trips, they

obtained four ounces (112 grams) of methamphetamine at a time from Kenneth. On one

of those trips, Isidro bargained with Kenneth for two pounds (896 grams) of

methamphetamine, using some cash and various stolen items as currency. He admitted

delivering methamphetamine for Joaquin but denied having any agreement with Appellant

to do so. Although he did see Appellant exchange cash with Joaquin for

methamphetamine, he described Appellant as merely a “user,” contrary to Mandy’s

testimony that Appellant was Joaquin’s “right-hand man.”

Appellant’s former girlfriend, Celina Rodriguez, moved to Littlefield in March 2014.

She moved in with Appellant after her mother kicked her out. She testified that Appellant

regularly obtained methamphetamine from Joaquin. She saw Appellant give Joaquin

cash for methamphetamine on several occasions and also saw him provide

methamphetamine to several of his co-conspirators. During cross-examination, Celina’s

credibility was called into question when she admitted lying to Agent Ashburn about

Joaquin’s operation. Celina’s cooperation was gained in exchange for a promise of help

with regards to regaining custody of her children.

There was conflicting testimony given as to Appellant’s role in Joaquin’s operation.

The jury, as the trier of fact, was free to resolve those inconsistencies in favor of the

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verdict. Jenkins, 493 S.W.3d at 599; Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000). Furthermore, even if there was no direct evidence of Appellant’s participation in

the delivery of a controlled substance, circumstantial evidence of his intent could have

been inferred from participation with the group. See Gomez v. State, No. 03-05-00842-

CR, 2008 Tex. App. LEXIS 7919, at *5 (Tex. App.—Austin Oct. 16, 2008, pet. ref’d) (mem.

op., not designated for publication).

In Gomez, the appellant was charged with engaging in organized criminal activity

with two of his siblings. On appeal, the appellant argued the evidence was insufficient

because the State had failed to prove that his sister, the third person necessary for a

criminal combination, had agreed or conspired to participate in criminal activity. Id. at *3.

In rejecting the argument, the court found that the jury could have inferred her involvement

because his sister owned and arranged for utility services at the house where the drugs

were sold and where a search warrant produced drugs, weapons, surveillance

equipment, cash, drug paraphernalia, and other evidence used in dealing drugs. There

was also evidence that the sister and the appellant’s other sibling were drug users. Id. at

*5.

Here, for purposes of establishing the delivery of a controlled substance, “delivery”

means the act of delivering. TEX. HEALTH & SAFETY CODE ANN. § 481.002(9) (West 2017).

“Deliver” means to transfer, actually or constructively, to another a controlled substance,

regardless of whether there is an agency relationship between the transferor and the

transferee. The term also includes offering to sell a controlled substance. TEX. HEALTH

& SAFETY CODE ANN. § 481.002(8). Under this definition, in the context of an engaging in

organized criminal activity offense, it is sufficient if any member of the combination

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delivers a controlled substance to another member of the combination in carrying out the

criminal objective of the combination.

Analyzing the evidence presented in this case against this framework, we observe

that the prosecution inadequately accounted for the actual or constructive transfer of any

specific quantity of a controlled substance, on any specific date, by a member of the

combination to either another member of the combination or to the public at-large.11 To

a great extent, the jury was left to speculate as to just when and how much

methamphetamine was transferred by Joaquin to Appellant, or from Appellant to anyone

else. However, for purposes of our sufficiency analysis, the evidence was sufficient to

satisfy the State’s burden of establishing delivery if it established the delivery of the

requisite amount by any member of the combination to any other member of the

combination.

In that regard, the record establishes that on or about the relevant time period

between March 1, 2014 to May 15, 2014, Kenneth delivered to Joaquin, Mandy, and Isidro

(all members of the combination) more than the 200 to 400 grams alleged in the

indictment. From that stash of methamphetamine, Joaquin delivered to Appellant (also a

member of the combination) on numerous occasions for his use and further delivery at

least 1.75 grams. Accordingly, the evidence is legally sufficient to establish that Appellant

and members of the combination had the requisite intent to establish, maintain, or

participate in a combination or in the profits of a combination, and that in the course of

that combination Appellant committed or conspired to commit the predicate offense of

11 As is evident throughout the record, the prosecution mistakenly relied on possession of a

controlled substance, not delivery, as the predicate offense for engaging in organized criminal activity.
21
delivery of methamphetamine in an amount of 200 or more grams. Accordingly, issue

one is overruled.

CONCLUSION

Because we cannot reform the conviction to any lesser-included offense as

discussed hereinabove, the trial court’s judgment is reversed and the cause is remanded

for a new trial.

Patrick A. Pirtle
Justice

Publish.

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