Alisha Beightol v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00374-CR
ALISHA BEIGHTOL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 32913CR
MEMORANDUM OPINION
Alisha Beightol was convicted by a jury of the offense of Possession of a
Controlled Substance with Intent to Deliver – Penalty Group I. TEX. HEALTH & SAFETY
CODE ANN. § 481.112 (Vernon 2003). She was tried jointly with her co-defendant,
Donnie Lloyd Poole, who was also convicted of the same offense.1 Based on the jury’s
verdict in the punishment phase, the trial court sentenced Beightol to imprisonment for
seven (7) years in the Texas Department of Criminal Justice – Institutional Division.
Because we find that the denial of Beightol’s motion for an instructed verdict was
1 Poole has also appealed his conviction in No. 10-08-00387-CR.
proper, the issues regarding the chain of custody and the improper foundation of the
evidence were waived due to inadequate briefing, and the trial court did not abuse its
discretion in the admittance of the exhibits regarding the composition of the
methamphetamine, we affirm the judgment.
Instructed Verdict
Beightol argues that the trial court erred in denying her motion for an instructed
verdict at the close of the evidence because there was insufficient evidence that Beightol
had knowledge or was otherwise involved in the drug transaction at issue.
An instructed (or directed) verdict is a challenge to the legal sufficiency of the
evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In reviewing
the legal sufficiency of the evidence, this Court looks at 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 offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Bigon v. State, 252
S.W.3d 360, 366 (Tex. Crim. App. 2008).
Under a legal sufficiency review, we consider all of the evidence admitted, both
properly and improperly admitted, as well as direct and circumstantial evidence.
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury, as sole judge of the
witnesses' credibility and the weight to be given their testimony, is free to accept or
reject any or all of the evidence presented by either side. See Margraves v. State, 34
S.W.3d 912, 919 (Tex. Crim. App. 2000). The reviewing court must give deference to
"the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the
Beightol v. State Page 2
evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. at
318-19). Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor and can alone be sufficient to establish guilt. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004).
Beightol argues that the evidence was insufficient to connect her to the
transaction. Beightol was charged both as a principal and under the law of parties. See
TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2) (Vernon 2003). Therefore, if there is legally
sufficient evidence that Beightol acted as either a principal or party to the offense, we
will uphold the jury's verdict. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App.
1992) ("The principle is well-established that when the jury returns a general verdict
and the evidence is sufficient to support a guilty finding under any of the allegations
submitted, the verdict will be upheld.").
Under the law of parties, "[a] person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both." TEX. PEN. CODE ANN. § 7.01(a) (Vernon
2003). A person is "criminally responsible" for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. Id. § 7.02(a)(2). Evidence is sufficient to convict under the law of parties where
the accused is physically present at the commission of the offense and encourages its
commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.
Beightol v. State Page 3
Crim. App. 1994). In determining whether an accused participated as a party, the fact
finder may examine the events occurring before, during, and after the commission of
the offense and may rely on actions of the accused that show an understanding and
common design to commit the offense. Id. Further, circumstantial evidence may be
used to prove party status. Id. To convict under the law of parties, when the defendant
is not the "primary actor," the State must prove (1) conduct constituting an offense, and
(2) an act by the defendant that was done with the intent to promote or assist such
conduct. Christensen v. State, 240 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref'd).
A transaction between Poole, known by law enforcement to be a drug dealer,
and a confidential informant was set up for the sale of 14 grams of methamphetamines
to be delivered by Poole at a convenience store. Beightol was traveling in the front
passenger seat of Poole’s vehicle. Through phone conversations which were recorded,
the location of the transaction was moved to a second location. The confidential
informant entered Poole’s van and gave a pre-arranged signal to law enforcement
stationed nearby that drugs were present. Poole was arrested for traffic warrants and
Beightol was detained at the scene.
The recording of the telephone conversations was admitted into evidence. A
voice that was said to be Beightol’s had a conversation with the confidential informant
where the original location of the transaction, the change of the time of the meeting, and
money were discussed. In the same conversation, Poole said that “it” would be in a
stick of deodorant. An empty deodorant stick and the deodorant that had been
Beightol v. State Page 4
removed were located on the floor between where Beightol and Poole were seated. The
drugs were located in the rear of the van. Reviewing the evidence under the
appropriate standards, giving deference to the jury as the determiner of facts and the
credibility of the witnesses, we find the evidence was legally sufficient to prove that
Beightol was, at a minimum, guilty as a party of the offense as charged. We overrule
Beightol’s first issue.
Improper Foundation and Chain of Custody
Beightol argues that the trial court abused its discretion in admitting three
exhibits because the proper foundation for the exhibits was not established and that the
State’s witnesses failed to establish the chain of custody of the exhibits prior to trial.
Beightol offers no other argument or authorities regarding these two issues. Therefore,
these issues are inadequately briefed, and therefore, are waived. See TEX. R. APP. P.
38.1(i). See Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). We overrule
issues two and four.
Composition of Controlled Substance
Beightol contends that the trial court abused its discretion by admitting three
exhibits since the sponsoring witness, a DPS chemist, was unable to testify as to the
actual amount of methamphetamine contained in the controlled substance and that the
indictment only alleged possession of a controlled substance, namely,
methamphetamine, and does not specifically include adulterants and dilutants.
However, the definition of a “controlled substance” in the Texas Health and Safety
Code is as follows:
Beightol v. State Page 5
“Controlled substance” means a substance, including a drug, an
adulterant, and a dilutant…. The term includes the aggregate weight of
any mixture, solution, or other substance containing a controlled
substance.”
Tex. Health & Safety Code Ann. § 481.002(5) (Vernon 2003).
The DPS chemist testified that the total weight of the drugs seized was 13.86
grams in weight and contained methamphetamine. We overrule issue three.
Conclusion
We find that the trial court did not err in denying Beightol’s motion for an
instructed verdict. We find that the issues regarding the chain of custody and improper
foundation were waived due to inadequate briefing. We find that the trial court did not
otherwise abuse its discretion in the admittance of the exhibits. We affirm the judgment
of conviction.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 25, 2009
Do not publish
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