Jimmy Ray Akins A/K/A Jimmy Akins v. State ( 2013 )

NUMBER 13-12-00464-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JIMMY RAY AKINS
A/K/A JIMMY AKINS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 415th District Court
of Parker County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
By three issues, appellant, Jimmy Ray Akins a/k/a Jimmy Akins, challenges his
conviction for delivery of a controlled substance, methamphetamine. TEX HEALTH &
SAFETY CODE ANN. § 481.112(a) (West 2010). Appellant contends that the evidence
was legally insufficient to support his conviction, and that the trial court erred by denying
his motion to dismiss because the prosecutor made prejudicial comments during closing
arguments. We affirm.1
I. BACKGROUND
Undercover police officer Christopher Negrete arranged to purchase one gram of
methamphetamine from Kathryn Robinson at her residence. Upon arriving at this
residence, Officer Negrete entered Robinson’s bedroom where he found Robinson, who
was sitting on the bed, another unidentified female, and appellant. The officer sat next
to Robinson, who then handed him a small baggie of methamphetamine. Officer
Negrete asked Robinson if the baggie “weighed out” to the previously agreed amount of
one gram.
Robinson then retrieved a digital scale from her nightstand and repeatedly tried
to get an accurate reading on the weight of the baggie. Robinson was unable to get the
scale to function property on an adjacent table. At this point, appellant leaned over,
grabbed the baggie of methamphetamine off of the scale, and stated that the digital
scale “had to be on a flat surface.” Appellant then proceeded to place the baggie back
on the scale in an attempt to get an accurate reading.
Appellant, who was previously unknown to the officer, was able to get a reading
of 1.3 grams on the scale. Robinson then grabbed the baggie of methamphetamine
and handed it directly to Officer Negrete. Officer Negrete testified that appellant both
“aided” and “assisted” Robinson “in this drug transaction.” Officer Negrete then handed
Robinson the agreed upon amount of $100 for the drugs and left the residence. The
baggie was later found to contain .86 grams of methamphetamine. Appellant was
1
This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
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indicted for delivery of a controlled substance. TEX HEALTH & SAFETY CODE ANN. §
481.112(a). The case went to trial and a jury found appellant guilty of the offense and,
after a punishment phase, assessed his punishment at fifteen years’ imprisonment and
an $8,000 fine. Appellant now appeals the conviction.
II. LEGAL SUFFICIENCY
By his first issue, appellant contends that there was insufficient evidence to
support his conviction as a party to the charged offense. Appellant argues that the trial
court, therefore, erred by failing to grant a directed verdict of acquittal.
A. Standard of Review
“When reviewing a case for legal sufficiency, we view all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Winfrey v.
State, 323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Accordingly, “we ‘determine whether the necessary inferences
are reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.’” Id. at 879 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16–
17 (Tex. Crim. App. 2007)). “It has been said quite appropriately, that ‘[t]he appellate
scales are supposed to be weighted in favor of upholding a trial court's judgment of
conviction, and this weighting includes, for example, the highly deferential standard of
review for legal-sufficiency claims.’” Id. (quoting Haynes v. State, 273 S.W.3d 183, 195
(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). “We
must therefore determine whether the evidence presented to the jury, viewed in the light
most favorable to the verdict, proves beyond a reasonable doubt that appellant”
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committed the crime for which the jury found him guilty. Id. “It is the obligation and
responsibility of appellate courts ‘to ensure that the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged.’” Id. at
882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
We measure the sufficiency of the evidence by the elements of the offense as
defined by the hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was
tried.” Malik, 953 S.W.2d at 240.
Additionally, in our analysis of the verdict, we recognize that the jury is the
exclusive judge of the credibility of the witnesses and the weight to be given their
testimony. Ozuna v. State, 199 S.W.3d 601, 610 (Tex. App.—Corpus Christi 2006, no
pet.). The jury may accept or reject all or part of the evidence. Id. The jury may also
draw reasonable inferences and make reasonable deductions from the evidence. Id.
B. Applicable Law
The offense of delivery of a controlled substance is defined as follows: “Except
as authorized by this chapter, a person commits an offense if the person knowingly
manufactures, delivers, or possesses with intent to deliver a controlled substance listed
in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a).
“In order to prove that an accused acted as a party to the offense, the State
must prove that the accused acted with intent to promote or assist in the commission of
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the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other
person in its commission. TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011); Martin v.
State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The law of parties applies to a
prosecution for delivery of a controlled substance. See Boyer v. State, 801 S.W.2d 897,
899 (Tex. Crim. App. 1991) (concluding that law of parties applies when two of the three
parties are an informant and police officer); Gonzalez v. State, 838 S.W.2d 770, 771
(Tex. App.—Corpus Christi 1992, no pet.); Robinson v. State, 815 S.W.2d 361, 363
(Tex. App.—Austin 1991, writ ref’d).
Evidence is sufficient to convict under the law of parties where the defendant is
physically present at the commission of the offense and encourages its commission by
words or other agreement. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.
1985). “In determining whether the accused participated as a party, the court may look
to events occurring before, during, and after the commission of the offense, and may
rely on actions of the defendant which show an understanding and common design to
do the prohibited act.” Id. Further, circumstantial evidence may be used to prove party
status. Id.
C. Discussion
As previously outlined, the State’s evidence at trial indicated that appellant did
not directly transfer the methamphetamine to the officer. However, a person is
criminally responsible for an offense committed by another if, acting with intent to
promote or assist in the commission of the offense, he encourages, aids, or attempts to
aid the other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2); Martin,
753 S.W.2d at 387. Evidence of mere presence or encouragement is sufficient to prove
that a defendant is a party to a transaction. See Cordova, 698 S.W.2d at 111. In this
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case, appellant was not only present but physically handled and helped weigh the drugs
in question. Appellant, in his brief, argues that the State failed to present evidence that
he knew that the contraband that he witnessed the transfer of and helped weigh was
illegal. However, the jury was entitled to rely on circumstantial evidence of the
defendant’s actions and the events occurring before, during, and after, the transaction in
its determination. See id. From the evidence, it is clear that the drugs were in plain
sight and in fact physically handled by appellant and that appellant was aware of the
transaction. This was sufficient evidence for the jury to determine that he was a party to
the delivery of methamphetamine, and we cannot replace its judgment with our own.
See id.; see also Ozuna, 199 S.W.3d at 610.
We overrule appellant’s first issue.
III. IMPROPER ARGUMENT
In his second and third issues, appellant contends that the trial court erred by
denying his two motions for mistrial made after the trial court sustained objections to
comments made by the prosecutor during closing argument. Assuming without
deciding that errors occurred, we find that they were cured by the trial court’s
instructions to disregard.
A. Applicable Law
We review the determination of whether the trial court erred by denying
appellant’s motion for a mistrial using an abuse of discretion standard. Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999).
The approved general areas of jury argument are: (1) summation of the
evidence, (2) reasonable deductions from the evidence, (3) answer to argument of
opposing counsel, and (4) plea for law enforcement. Hathorn v. State, 848 S.W.2d 101,
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117 (Tex. Crim. App. 1992). Neither the trial judge nor the prosecutor can comment on
the failure of an accused to testify. Such a comment violates the privilege against self-
incrimination and the freedom from being compelled to testify contained in the Fifth
Amendment of the United States Constitution and Article I, section 10, of the Texas
Constitution. Bustamante v. State, 48 S.W.3d 761, 767 (Tex. Crim. App. 2001).
However, a mistrial is not warranted if “the language might be construed as an implied
or indirect allusion” to the defendant’s failure to testify. Id.
However, even when an argument exceeds the permissible bounds of these
approved areas, such will not constitute reversible error unless, in light of the record as
a whole, the argument is extreme or manifestly improper, violative of a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding.” Todd v.
State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980). “The remarks must have been
a willful and calculated effort on the part of the State to deprive appellant of a fair and
impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997).
In determining whether a mistrial should have been granted for improper jury
argument we consider the factors stated by the court of criminal appeals in Mosely v.
State: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the
prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge), and (3) the certainty of conviction absent the
misconduct (the strength of the evidence supporting the conviction). 983 S.W.2d 249,
259 (Tex. Crim. App. 1998). In most instances, an instruction to disregard the remarks
will cure the error. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994)
(“[A]n instruction to disregard will cure such error unless the prosecutor's remark was so
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inflammatory that its prejudicial effect could not reasonably be overcome by such an
instruction.”); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992).
B. Discussion
Appellant first contends that the State made a speculative statement about what
a witness might have recounted had she been called, which was not based on evidence
in the record. See Hathorn, 848 S.W.2d at 117. Appellant complains of the
prosecutor’s comment during closing arguments regarding Kathryn Robinson, the
person who actually transferred the methamphetamine to the officer. The prosecutor
stated, “But if they wanted to subpoena Kathryn Robinson, they could do it. Yeah, I
was—Kathryn Robinson: I was there, I had a dope deal with Carlos and we did it.
That’s what you were going to hear because that’s what happened.” The trial court
sustained defense counsel’s objection to this comment and issued an instruction to the
jury disregard it. Analyzing the Mosely factors: (1) if the prosecutor did commit error, it
was not overly prejudicial as he merely argued that Robinson’s testimony would not
contradict evidence already in the record, the testimony of the officer; (2) the trial court
issued an instruction to disregard; and (3) the State elicited testimony from the officer
involved in the transactions who identified the appellant as being present at the deal
and handling the methamphetamine; therefore, the strength of the evidence supporting
the conviction was relatively strong. See Mosley, 983 S.W.2d at 259. Accordingly, we
find the instruction to disregard this comment sufficient to cure error, if any occurred.
Wilkerson, 881 S.W.2d at 324; Cooks, 844 S.W.2d at 727.
Next, appellant contends that the prosecutor made a prejudicial comment on
appellant’s failure to testify. See Bustamante, 48 S.W.3d at 767. During closing
arguments, the prosecutor stated “You don’t have any evidence, not one single bit of
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evidence that Jimmy Ray Akins did not pick up the baggy of meth, did not pick it up,
place it on the scale….” The trial court sustained defense counsel’s objection to this
comment, and issued an instruction to the jury to disregard it. Considering that this was
at most an indirect comment on appellant’s decision to not testify and, therefore was not
overly prejudicial, and that the evidence supporting appellant’s conviction was relatively
strong, we find the instruction to disregard sufficient to cure error, if any occurred. See
Mosley, 983 S.W.2d at 259; see also Wilkerson, 881 S.W.2d at 324; Cooks, 844 S.W.2d
at 727.
We overrule appellant’s second and third issues.
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of August, 2013.
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