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Troy Jamarkus Garner v. State ( 2017 )


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  •                                        In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ________________
    NO. 09-15-00317-CR
    _________________
    TROY JAMARKUS GARNER, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    ________________________________________________________________________
    On Appeal from the 258th District Court
    Polk County, Texas
    Trial Cause No. 23184
    ________________________________________________________________________
    MEMORANDUM OPINION
    Troy Jamarkus Garner appeals his conviction for engaging in organized
    criminal activity. See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2016).1 In two
    issues, Garner challenges the sufficiency of the evidence to support the conviction
    and contends that the trial court erred in admitting evidence of extraneous bad acts.
    1
    Because the 2015 amendment to section 71.02 does not affect the outcome
    of this appeal, we cite to the current version.
    1
    I. Background
    The indictment in this case alleged that Garner
    did then and there with intent to establish, maintain, and participate in
    a combination and in the profits of a combination, said combination
    consisting of Vikki Nixon, Troy Jamarkus Garner, and Shelby Waldrep,
    agree to commit the offense of Delivery of a Controlled Substance
    Penalty Group One in an amount of one gram or more but less than four
    grams including any adulterants or dilutants to-wit: By Shelby Waldrep
    committing the overt act of bringing a controlled substance to the Polk
    County Jail[.]
    The State produced telephone conversations that were recorded while Garner
    was incarcerated in the Polk County Jail. In the conversations, Garner can be heard
    arranging to have Waldrep obtain methamphetamine from Nixon and smuggle it to
    him inside the jail. In the course of the conversations, Garner states that his business
    with Nixon is good, thanks Nixon for everything she does, and indicates that he will
    make things happen when he gets out of jail on bond.
    Waldrep obtained methamphetamine from Nixon, placed it inside a container
    of over-the-counter medicinal cream, and delivered it to the jail for delivery to
    Garner. The contraband was discovered by a jailer upon inspection of the cream. An
    officer confronted Waldrep, who eventually confessed and implicated Garner and
    Nixon. The officer’s investigation into the jail telephone recordings resulted in the
    discovery of the telephone conversations Garner had with Nixon and Waldrep four
    or five hours before Waldrep smuggled the drugs into the jail. Execution of a search
    2
    warrant on Nixon’s residence a week or two later resulted in the seizure of
    methamphetamine.
    In Garner’s trial, Waldrep testified that she pleaded guilty to engaging in
    organized criminal activity in connection with the incident.2 Waldrep testified that
    she and Garner frequently used methamphetamine together. Waldrep stated that she
    only obtained methamphetamine from Nixon one time, when Nixon gave her
    methamphetamine to deliver to Garner in the jail.
    A narcotics officer testified that as part of an investigation of drug dealing by
    Garner and Garner’s brother, an informant purchased $140 worth of
    methamphetamine from Garner in a controlled buy, approximately six weeks before
    the incident at the jail. Neither Nixon nor Waldrep were involved in the controlled
    buy. The informant testified that she had purchased drugs from Garner on at least
    one other occasion before the date of the controlled buy.
    Another officer testified that he arrested Garner for possessing drug
    paraphernalia one month before the jail incident occurred. A search of Garner’s
    vehicle and the surrounding area yielded a pipe, a set of scales disguised as a
    cigarette pack, $1001 in currency, and methamphetamine. Neither Nixon nor
    Waldrep were with Garner at the time.
    2
    No record of any conviction was introduced into the record before us.
    3
    The jury found Garner guilty of engaging in organized criminal activity as
    charged in the indictment. The trial court sentenced Garner to ten years of
    imprisonment.
    II. Sufficiency of the Evidence
    When evaluating the sufficiency of the evidence, we view all of the evidence
    in the light most favorable to the prosecution and 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. 307
    , 318–19 (1979); Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007). We “must 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.’” 
    Hooper, 214 S.W.3d at 13
    (quoting 
    Jackson, 443 U.S. at 319
    ). “The jury is the sole judge of
    credibility and weight to be attached to the testimony of witnesses.” Merritt v. State,
    
    368 S.W.3d 516
    , 525 (Tex. Crim. App. 2012). In this role, the jury may “choose to
    believe all, some, or none of the testimony presented by the parties.” Chambers v.
    State, 
    805 S.W.2d 459
    , 461 (Tex. Crim. App. 1991).
    Waldrep was an accomplice as a matter of law; therefore, Garner’s conviction
    cannot rest on Waldrep’s testimony absent corroborating evidence tending to
    connect Garner to the offense. See Tex. Code Crim. Proc. Ann. Art. 38.14 (West
    4
    2005); Smith v. State, 
    332 S.W.3d 425
    , 439 (Tex. Crim. App. 2011). The test for
    weighing the sufficiency of corroborating evidence is to eliminate from
    consideration the accomplice’s testimony, and then examine the remaining
    testimony and evidence to determine if there is evidence that tends to connect the
    defendant with the commission of the offense. Munoz v. State, 
    853 S.W.2d 558
    , 559
    (Tex. Crim. App. 1993).
    To establish the commission of the crime of engaging in organized criminal
    activity, “the State must prove more than that the appellant committed or conspired
    to commit one of the enumerated offenses with two or more other people.” Nguyen
    v. State, 
    1 S.W.3d 694
    , 697 (Tex. Crim. App. 1999). “[T]he State must prove that
    the appellant intended to ‘establish, maintain, or participate in’ a group of three or
    more, in which the members intend to work together in a continuing course of
    criminal activities.” 
    Id. The acts
    used to prove intent need not be criminal offenses.
    
    Id. Garner argues
    the evidence is insufficient because the State proved only an
    agreement to jointly commit a single crime. There is evidence from which the jury
    could infer that Waldrep intended to participate in future crimes with Garner and
    Nixon because Waldrep testified that she pleaded guilty to engaging in organized
    criminal activity in connection with her delivery of methamphetamine to the jail.
    5
    The issue in this case, however, is whether the jury could infer that Garner intended
    to collaborate in committing future crimes with both Nixon and Waldrep.
    Proof of coordinated action can support an inference that the parties agreed to
    collaborate in carrying on criminal activities. See, e.g., Dowdle v. State, 
    11 S.W.3d 233
    , 236–37 (Tex. Crim. App. 2000). The jail recordings and the evidence that
    methamphetamine was seized in a search of Nixon’s home provide evidence from
    which the jury could reasonably infer that Garner and Nixon had a pre-existing and
    ongoing wholesaler-retailer methamphetamine distribution relationship. Garner
    recruited Waldrep to smuggle methamphetamine into the jail that Nixon provided to
    Waldrep for delivery to Garner. From her guilty plea to engaging in organized
    criminal activity in connection with this same occurrence, the jury could reasonably
    infer that Waldrep intended to join with Nixon and Garner in the commission of
    future crimes. The jury could reasonably infer Garner’s intent to establish a
    combination through testimony that established Garner’s previous drug dealing,
    from Garner’s telephone conversations in which he arranged to have Nixon give
    methamphetamine to Waldrep and for Waldrep to smuggle the methamphetamine
    into the jail, and from Garner’s statements that he would make things happen upon
    his release from jail and business was good between them. The jury could rationally
    find Garner guilty of engaging in organized criminal activity because the defendant’s
    6
    intent to establish a combination is established on these facts. See 
    Nguyen, 1 S.W.3d at 697
    –98. We overrule issue one.
    III. Extraneous Offenses
    In issue two, Garner contends the trial court erred by admitting evidence that
    Garner committed extraneous offenses. Garner does not challenge the relevance of
    this evidence, but he argues that the probative value of the evidence was substantially
    outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Relevant
    evidence may be excluded if its probative value is substantially outweighed by a
    danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay,
    or needlessly presenting cumulative evidence.” 
    Id. Balancing Rule
    403 “includes,
    but is not limited to the following factors: (1) the probative value of the evidence;
    (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the
    time needed to develop the evidence; and (4) the proponent’s need for the evidence.”
    Hernandez v. State, 
    390 S.W.3d 310
    , 324 (Tex. Crim. App. 2012). “Rule 403 favors
    the admission of relevant evidence and carries a presumption that relevant evidence
    will be more probative than prejudicial.” Shuffield v. State, 
    189 S.W.3d 782
    , 787
    (Tex. Crim. App. 2006).
    Of the record cites mentioned in his appellate brief, we find a single preserved
    Rule 403 objection. Over Garner’s Rule 403 objection, a detective with the Polk
    7
    County Sheriff’s Department was permitted to testify that Garner and his brother
    have reputations as drug dealers. Additionally, Garner made a Rule 403 objection at
    trial to the admission of a September 21, 2013 video recording of a drug purchase
    between Garner and an informant.
    Garner argues the testimony concerning drug transactions that did not involve
    Nixon and Waldrep lacked probative value concerning the existence of a
    combination and showed Garner in a “bad light.” He argues the jury would be
    irrationally motivated to convict him for something because he engaged in two
    additional drug transactions but engaging in organized criminal activity was the sole
    option available to convict him. The State relied, at least in part, on the extraneous
    offense evidence to establish Garner’s intent to establish a combination with Nixon
    and Waldrep. The extraneous offenses were probative of whether Garner was a drug
    dealer, as opposed to a mere consumer of methamphetamine. Under the Rule 403
    balancing test, the trial court could have reasonably concluded that revealing Garner
    was a drug dealer was probative of his intent to establish a combination, and any
    prejudice was not unfair because the prejudicial effect arose from its probative value
    and not some unrelated matter. See Martin v. State, 
    144 S.W.3d 29
    , 33 (Tex. App.—
    Beaumont 2004), aff’d, 
    173 S.W.3d 463
    (Tex. Crim. App. 2005); Saxer v. State, 
    115 S.W.3d 765
    , 776 (Tex. App.—Beaumont 2003, pet. ref’d). Because the trial court’s
    8
    ruling does not lie outside the zone of reasonable disagreement about its
    admissibility, we overrule issue two.
    IV. Holding
    The judgment of the trial court is affirmed.
    AFFIRMED.
    ______________________________
    CHARLES KREGER
    Justice
    Submitted on November 18, 2016
    Opinion Delivered August 2, 2017
    Do not publish
    Before McKeithen, C.J., Kreger, and Johnson, JJ.
    9