Aguirre, Rigoberto v. State ( 2003 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

RIGOBERTO AGUIRRE,                                     )

                                                                              )               No.  08-00-00456-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     384th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 980D06209)

                                                                              )

O P I N I O N

Appellant, Rigoberto Aguirre, was charged with the first-degree felony offense of delivery of a controlled substance, cocaine, in the amount of four or more but less than 200 grams.  He was found guilty by a jury, and sentenced by the trial court.  The court assessed punishment at 10 years= confinement, probated for 10 years, and a fine of $5,000, half of which was probated.  Appellant now brings this appeal, raising three issues for our review.  We will affirm the conviction. 

UNDERLYING FACTS

In March 1998, Detective Mario Garcia was assigned to the Metro Narcotics Task Force of the El Paso County Sheriff=s Office.  As part of his duties, Detective Garcia participated in an undercover investigation involving Appellant.  On March 13, 1998, Detective Garcia was introduced to Appellant by a confidential informant, Jose Escobedo Hernandez.  The introduction took place at the Potrero Bar in El Paso, Texas.  Shortly after arriving at the bar, Mr. Hernandez met with Appellant. Afterwards, Detective Garcia was introduced to Appellant in the men=s restroom and arrangements were made for the detective to purchase cocaine from Appellant.  During the meeting, Appellant told the detective he would sell him an ounce of cocaine for $600.^[1]  After a brief discussion, Detective Garcia paid Appellant for the drugs.  Appellant then left to retrieve the cocaine while Detective Garcia and Mr. Hernandez waited at the bar.  A short while later, Felix Santistevan entered the bar and motioned for the detective.  Detective Garcia followed Mr. Santistevan out of the bar and into the parking lot.  Detective Garcia later testified he did not know Mr. Santistevan, but assumed had been sent by Appellant to give him the cocaine or deliver a message.  The two men introduced themselves and then Mr. Santistevan opened the hood of a car, retrieved a baggy of cocaine from the battery area, and gave it to Detective Garcia.  The detective then asked Mr. Santistevan if Appellant had sent him and Mr. Santistevan answered in the affirmative.  Both Appellant and Mr. Santistevan were later arrested for unlawful delivery of cocaine. 

ISSUES ON APPEAL

Appellant now raises three issues on appeal.  First, he argues the court erred in not granting his Amotion for judgment of acquittal.@  In essence, Appellant is challenging the legal sufficiency of the evidence establishing the existence or amount of adulterants and/or dilutants in the controlled substance.  Second, he contends the trial court erred in the admission of hearsay evidence.  Third, he asserts the trial court erred by failing to order the State to produce the confidential informant at trial, provide the defense with the informant=s whereabouts, and render assistance in locating him.

With his first issue, Appellant complains the State failed to prove the amount and nature of the adulterants and dilutants present in the controlled substance.  Appellant relies on two

sub-issues to support his contention that this proof was required.  First, he maintains the wording of indictment and Texas case law require such proof.  Second, he contends the State must prove the amount of adulterants or dilutants in the cocaine in order to satisfy the requirements of Apprendi v. New Jersey.^[2]

The indictment described the controlled substance as Acocaine, having an aggregate weight of 4 grams or more but less than 200 grams, including any adulterants or dilutants.@ Appellant argues when adulterants or dilutants constitute a part of the weight utilized to increase punishment, the State must prove:  (1) the identity of the named illegal substance; (2) the chemical activity of the illegal substance has not been affected by the adulterants and dilutants; (3) the adulterants and dilutants were added to the illegal substance in order to increase the bulk or quantity of the final product; and (4) the total weight of the illegal substance, including any adulterants or dilutants. Appellant relies on the Court of Criminal Appeals= decision in Cawthon v. State^[3] to support this argument.  He contends that because the State failed to meet its burden of proof under Cawthon, the evidence is insufficient to support the conviction.^[4] 

Legal Sufficiency

In reviewing the legal sufficiency of the evidence supporting a criminal conviction, an appellate court views the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).  We do not reconcile conflicts of fact or assign credibility to witnesses, as this is within the exclusive province of the jury.  Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d).  Instead, the sole duty of this Court is to determine if the explicit and implicit findings of the jury are rational when the evidence admitted at trial is viewed in a light most favorable to the verdict.  Adelman, 828 S.W.2d at 421-22; Lyon v. State, 885 S.W.2d 506, 517 (Tex.App.--El Paso 1994, pet. ref=d).

Appellant=s argument relies on Cawthon and its progeny.  However, Appellant fails to acknowledge Cawthon no longer applies in cases such as the one before us today.  Cawthon was decided in 1992.  Since that time, the legislature has specifically amended the Texas Health and Safety Code provisions addressing situations where adulterants or dilutants are present in a controlled substance.^[5]  These amendments omit the Cawthon requirements.  Because these statutory amendments supersede earlier case law, we look solely to the Texas Health and Safety Code to resolve this issue.  See Hernandez v. State, 13 S.W.3d 492, 498-99 (Tex.App.--Amarillo 2000), rev=d on other grounds, 60 S.W.3d 106 (Tex.Crim.App. 2001).

Texas Health & Safety Code Provisions

Criminal prosecutions for intentional or knowing delivery of a controlled substance such as cocaine are governed by the Texas Health and Safety Code.  See Tex.Health & Safety Code Ann. '' 481.102, 481.112 (Vernon Supp. 2003).  A person commits an offense if he intentionally or knowingly delivers a controlled substance listed in the statute.  Tex.Health & Safety Code Ann. ' 481.112.  Cocaine is included in the statute and categorized as a Penalty Group 1 substance. Tex.Health & Safety Code Ann. ' 481.102(3)(D).  Delivery of cocaine is a first-degree felony offense if the aggregate weight of the substance, including adulterants or dilutants, is four grams or more, but less than 200 grams.  Tex.Health & Safety Code Ann. ' 481.112(d).  Adulterants or dilutants are defined by the statute as Aany material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.@ Tex.Health & Safety Code Ann. ' 481.002 (49).  The legislature has also clearly defined the term Acontrolled substance@ such that it Aincludes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.@  Tex.Health & Safety Code Ann. ' 481.002(5).

In this case, the State produced evidence that the substance delivered to Detective Garcia contained cocaine and weighed 24.81 grams. William Todsen, a forensic scientist with the Texas Department of Public Safety, testified he had performed tests on the substance and concluded it contained cocaine. He also explained his tests indicated the presence of adulterants and/or dilutants in the substance, but he did not determine the nature or amount of this material. Mr. Todsen testified the aggregate weight of the substance was 24.81 grams.  The State also introduced the actual cocaine, as well as the written lab report prepared by Mr. Todsen.  The lab report clearly indicated the substance contained cocaine and weighed 24.81 grams. 

When viewed in the light most favorable to the verdict, Mr. Todsen=s testimony and the exhibits admitted into evidence are sufficient for us to conclude that a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt.  Geesa, 820 S.W.2d at 159. In particular, the evidence was legally sufficient to allow the jury to conclude the substance delivered was cocaine, in the amount of at least four grams but less than 200 grams.  Tex.Health & Safety Code Ann. '' 481.102(3)(D), 481.112(d).  This portion of Appellant=s first issue is overruled.

Appellant also argues the State had to prove the amount of adulterants or dilutants in the cocaine in order to fulfill the requisites of Apprendi.  Appellant reasons the addition of adulterants or dilutants to cocaine results in an increased penalty for delivery of a controlled substance. He argues the amount of adulterants or dilutants is a penalty-enhancing element that must be proven beyond a reasonable doubt.  Appellant=s argument relies upon tying the amount of the adulterant or dilutant to severity of punishment.

Appellant=s proposed application of Apprendi in this particular case is flawed for several reasons.  First, as previously discussed, the amount of adulterants or dilutants present in a controlled substance is not at issue. The code defines controlled substance to include an illegal substance such as cocaine and any adulterant or dilutant also present in the mixture.  Tex.Health & Safety Code Ann. ' 481.002(5).  Second, Appellant suggests the amount of controlled substance is essentially a fact that can be used to enhance a penalty.  This description is misleading.  The code establishes several offenses related to the possession of a controlled substance with intent to deliver.  See Tex.Health & Safety Code Ann. ' 481.112.  Each offense is tied to a defined weight or amount of controlled substance and an attendant punishment range.  Id. The amounts of controlled substance and the corresponding punishment range are graduated.  Id.  However, this gradation does not create an enhanced penalty scheme, but rather independent chargeable offenses.  Third, Apprendi requires the State to prove beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum.  Apprendi, 530 U.S. at 490, 120 S.Ct. At 2362-63.  It also requires these fact issues to be submitted to the jury.  Id.  In this instance, the amount of adulterant or dilutant was not a fact issue that was used by the court to enhance the penalty beyond the statutory limits.  Further, it was the jury, not the judge that found Appellant guilty of delivery of a controlled substance.  Apprendi simply does not apply to the issue before us as suggested by Appellant.  Accordingly, the trial court did not err in denying Appellant=s motion for directed verdict.  Appellant=s first issue is overruled.

Rule 801(e)(2)(E)

Appellant=s second issue relates to the admission into evidence of Mr. Santistevan=s statement to Detective Garcia that Appellant had sent him to deliver the cocaine. This statement came into evidence through the testimony of Detective Garcia.  Appellant maintains the statement was improper hearsay and should not have been admitted by the court.  Prior to Detective Garcia=s testimony, the trial court discussed the matter with the parties outside the presence of the jury.  Appellant argued then, as he does now on appeal, that the statement constitutes hearsay. Appellant primarily directed the court=s attention to Rule 803(24) and cases involving that rule.^[6]  The State has consistently maintained the testimony was offered and admissible under Rule 801(e)(2)(E).  The trial court ultimately allowed the testimony under this particular rule.

Texas Rule of Evidence 801(e)(2)(E) provides:

(e)        Statements Which Are Not Hearsay.  A statement is not hearsay if:

.               .               .

(2)        Admission by party-apponent.  The statement is offered against a party and is:

.               .               .

(E)       a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Tex.R.Evid. 801(e)(2)(E).  As a general rule of evidence, Rule 801(e)(2)(E) is applicable to cases involving any offense, and is not limited to prosecutions for conspiracy. Roy v. State, 608 S.W.2d 645, 651 (Tex.Crim.App. 1980); Bailey v. State, 804 S.W.2d 226, 230 (Tex.App.--Amarillo 1991, no pet.).  Moreover, when two or more individuals take part in the commission of a felony, evidence of the conspiracy is admissible regardless of whether the substantive crime of conspiracy is charged in the indictment.  Roy, 608 S.W.2d at 651.

Conspiracy

A conspiracy includes everything within the contemplation of the conspirators.  Wilkerson v. State, 933 S.W.2d 276, 279 (Tex.App.--Houston [1st Dist.] 1996, pet. ref=d); Callaway v. State, 818 S.W.2d 816, 831 (Tex.App.--Amarillo 1991, pet. ref=d).  It is terminated only after every act subsequent to the commission of the offense within the plan and breadth of the conspiracy has been performed.  Callaway, 818 S.W.2d at 831. Whether a conspiracy exists between two parties must be proved by a preponderance of the evidence.  Wilkerson, 933 S.W.2d at 279. Such proof may be established by direct or circumstantial facts and also may be inferred from the evidence.  Id.  Proof that two individuals were acting together to sell illegal drugs is by itself sufficient to establish a conspiracy.  Roy, 608 S.W.2d at 651; Wilkerson, 933 S.W.2d at 280; see also Burton v. State, 830 S.W.2d 197, 203 (Tex.App.--El Paso 1992, no pet.).

In this instance, there is evidence demonstrating the existence of a conspiracy between Appellant and Felix Santistevan.  Detective Garcia=s testimony linked the individuals= mutual involvement in the sale of the cocaine. The conversation between Detective Garcia and Mr. Santistevan occurred during the commission of the offense and may fairly be considered within the breadth and furtherance of the conspiracy.  Wilkerson, 933 S.W.2d at 280. The trial court=s reliance on this testimony in finding evidence of a conspiracy and allowing the statement into evidence was proper.  See id.  Appellant=s second issue is overruled.

Confidential Informant

With his third issue on appeal, Appellant claims the trial court erred in its rulings regarding a confidential informant.  In particular, Appellant argues the court erred by not ordering the State to provide the whereabouts of a confidential informant and render reasonable assistance in locating that person.  Appellant also contends the court erred by not ordering the State to actually produce the confidential informant at trial.

Prior to the commencement of trial on September 18, 2000, defense counsel made a motion to require disclosure of all informers relied upon by the State.  After a brief discussion, the court ordered the State to give defense counsel the name of the informant.^[7]  The court also ordered the State to try to find the informant and make him available for the defense to question.  After this ruling, defense counsel made a motion for the court to require the State to actually produce the confidential informant as a witness.  The defense reasoned the informant was a material witness that should be required to testify.  The State indicated it had never intended to call the informant and it had never listed the informant as a possible witness.  The prosecutor further argued the State was only obligated to disclose the name of the informant and the defense was responsible for securing that individual as a witness if they so desired.  The prosecutor agreed to try to locate the individual, but maintained a failure to do so would not be fatal to the case.  After this exchange, the court again asked the State to attempt to find the informant, but did not issue an order requiring the witness to be produced.

On September 19, 2000, issues related to the confidential informant were again raised by the defense.  At that time, the trial judge confirmed the State had revealed the name of the informant to the defense.  The court also inquired as to whether the State had been able to locate the informant. The prosecutor explained that an agent from the District Attorney=s Office had attempted to locate the informant, but was unsuccessful.  He also explained the State did not have a current address for the individual.  Again the defense argued the State=s failure to produce the informant as a material witness would be fatal to the case. Defense counsel maintained the State has the burden of calling the confidential informant as a witness once the identity of the informant has been revealed.  In response, the State noted the defense had failed to issue a subpoena or make any attempts to locate the informant.  The prosecutor argued that because the State never intended to call the informant, had not listed him as a witness, and had not issued a subpoena compelling his presence in court, the Appellant should have made efforts to obtain the witness himself.

In response to defense counsel=s argument, Detective Garcia was called to testify outside the presence of the jury.  The detective testified that a confidential informant, Jose Escobedo Hernandez, had been present on the day in question.  The defense argued the presence of the informant entitled Appellant to question the informant.  The State contended there had been no requisite showing of materiality.  After a lengthy discussion, the court denied Appellant=s motion and did not require the State to produce the informer.

Disclosure of an informant=s identity is required if it would be relevant and helpful to the defense or essential to a fair determination of a cause. Roviaro v. United States, 353 U.S. 53,

60-1, 77 S.Ct. 623, 628, 1 L. Ed. 2d 639, 645 (1957); United States v. Davis, 487 F.2d 1249, 1251 (5th Cir. 1973).  Once the identity of an informer is disclosed, the State is not automatically required to actually produce a witness.  United States v. Fischel, 686 F.2d 1082, 1092 (5th Cir. 1982); Rangel v. State, 585 S.W.2d 695, 697 (Tex.Crim.App. 1979); Fitzpatrick v. State, 632 S.W.2d 935, 938 (Tex.App.--Fort Worth 1982, pet. ref=d).  However, the State should provide the last known address of the informer and reasonable assistance in locating him or her.  Rangel, 585 S.W.2d at 697.  Whether the State provides reasonable assistance in locating an informer is determined on a case-by-case examination of the facts.  Id. 

In the case before us, there is nothing in the record to indicate the State had any special or concealed knowledge about the informant=s location at the time of trial.  Ashorn v. State, 802 S.W.2d 888, 894 (Tex.App.--Fort Worth 1991, no pet.); Fitzpatrick, 632 S.W.2d at 938.  To the contrary, there is evidence of the State=s attempts to cooperate with Appellant. The record reveals the State made a good faith effort to locate the informant at the request of the court.  See Rangel, 585 S.W.2d at 697 (where the Court found the State gave reasonable assistance in locating an informer even though it had no information which could aid in finding the individual). Moreover, there is no evidence or suggestion that Appellant made any efforts whatsoever to locate the informer and call him as a witness.  Ashorn, 802 S.W.2d at 894. 

Upon review of the record, we conclude the trial court did not err in its rulings related to the confidential informant.  We further conclude the State provided reasonable assistance in locating Mr. Hernandez.  Finally, we hold there is no absolute requirement of the State to produce an informer as a witness.  Id. Appellant=s third issue on appeal is overruled. 

Overruling each of Appellant=s issues on appeal, we affirm the judgment of the trial court.

February 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

---

^[1] Detective Garcia testified that the word Acocaine@ was not actually used by either party during the conversation.

^[2] 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000).

^[3] 849 S.W.2d 346 (Tex.Crim.App. 1992).

^[4] In his brief, Appellant seems to challenge both the legal and factual sufficiency of the evidence supporting his conviction.  However, his complaint is that the trial court erred in denying his motion for directed verdict.  He argues that the State Anever introduced any evidence whatsoever@ related to the adulterants and dilutants in the controlled substance.  Appellant requested this Court reverse and render a judgment of acquittal.  The State contends that Appellant=s no-evidence complaint is essentially a challenge limited to the legal sufficiency of the evidence.  We agree. When an appellant complains on appeal of a trial court=s failure to grant a motion for directed verdict, such a complaint challenges the legal sufficiency of the evidence, not the factual sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Barron v. State, 43 S.W.3d 719, 722 (Tex.App.--El Paso 2001, no pet.).

^[5] In 1993, the Legislature amended Section 481.002 to add a specific definition for the terms Aadulterant or dilutant.@  Act of May 29, 1993, 73rd Leg., R.S., ch. 900, ' 2.01, 1993 Tex.Gen.Laws 3705.  The definition of Acontrolled substance@ was also modified in 1997.  Act of May 23, 1997, 75th Leg., R.S., ch. 745, ' 1, 1997 Tex.Gen.Laws 2411.

^[6] Rule 803(24) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

                                                              .               .               .

(24)      Statement Against Interest.  A statement which was at the time of its making so far contrary to the declarant=s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant=s position would not have made the statement unless believing it to be true.  In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex.R.Evid. 803(24).  Because the testimony was neither offered nor admitted as a statement against interest, we need not address those aspects of Appellant=s argument related solely to this particular rule of evidence.

^[7] The record indicates the State had previously disclosed the identity of the informant at an earlier hearing to Appellant=s attorney at the time.  Appellant was represented by a different attorney at trial who maintained he was unaware of the informant=s identity.