Terry Lee Bale v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00276-CR
TERRY LEE BALE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F44527
MEMORANDUM OPINION
After a jury trial, appellant Terry Lee Bale was convicted of unlawful delivery of
a controlled substance, methamphetamine, in the amount of more than four grams but
less than 200 grams, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §§
481.102(6) (categorizing methamphetamine as a Penalty Group 1 controlled substance),
481.112(a), (d) (West 2010). He was subsequently sentenced to forty years’ incarceration
in the Institutional Division of the Texas Department of Criminal Justice with a $5,000
fine. In one issue, Bale argues that the trial court erred in denying his motion for a
directed verdict. We affirm.
I. STANDARD OF REVIEW
A challenge to a ruling on a motion for directed verdict is a challenge to the
sufficiency of the evidence to support the conviction. See Williams v. State, 937 S.W.2d
479, 482 (Tex. Crim. App. 1996); see also Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.
App. 1990) (en banc). We must consider all the evidence “in the light most favorable to
the verdict.” Madden, 799 S.W.2d at 686. “If the evidence is sufficient to sustain the
conviction, then the trial judge did not err in overruling appellant’s motion.” Id.
II. ANALYSIS
In his sole issue on appeal, Bale contends that the trial court erred in denying his
motion for a directed verdict because the evidence is insufficient to link him to State’s
exhibit 1, a plastic bag containing approximately seven grams of methamphetamine.
We disagree.
Article 38.141 of the Code of Criminal Procedure establishes the “covert-agent
rule,” which states as follows:
(a) A defendant may not be convicted of an offense under Chapter 481,
Health and Safety Code, on the testimony of a person who is not a
licensed peace officer or a special investigator but who is acting
covertly on behalf of a law enforcement agency or under the color of
law enforcement unless the testimony is corroborated by other
evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the
corroboration only shows the commission of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.141(a)-(b) (West 2005); see Malone v. State, 253
S.W.3d 253, 257 (Tex. Crim. App. 2008) (referring to article 38.141 as the “covert-agent
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rule”).
The covert-agent rule derives not from federal or state constitutional principles,
but rather from the legislative determination that the testimony of an informant must be
taken with a degree of caution. See Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.—
Austin 2002, no pet.); see also Bussey v. State, No. 14-10-00685-CR, 2012 WL 626316, at *4
(Tex. App.—Houston [14th Dist.] Feb. 28, 2012, no pet. h.) (mem. op., not designated for
publication). The reason for the rule is that a covert agent often works with the police
for self-interested reasons, whether it be for compensation or, as is the case here, to have
charges against her reduced or dismissed. See Simmons v. State, 205 S.W.3d 65, 72 (Tex.
App.—Fort Worth 2006, no pet.). Thus, because a person’s self-interest may generate a
corrupt motive for testifying, a covert agent is generally considered to be a “discredited
witness” whose testimony must be corroborated before a jury may convict the accused.
See Cantelon, 85 S.W.3d at 460; see also Young v. State, 95 S.W.3d 448, 451 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d).
When determining the sufficiency of corroborating evidence, we eliminate the
testimony of the covert agent and examine whether the remaining evidence tends to
connect the accused to the charged crime. See Malone, 253 S.W.3d at 258 (“There is no
set amount of non-accomplice corroboration evidence that is required for sufficiency
purposes.”); see also Krebbs v. State, No. 10-09-00323-CR, 2010 WL 3584384, at *1 (Tex.
App.—Waco Sept. 15, 2010, no pet.) (mem. op., not designated for publication) (“The
standard for evaluation of the sufficiency of the corroboration of the testimony of a
covert witness is the same as that of the testimony of an accomplice.”). The “tends to
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connect” standard is not a high threshold, and it may be satisfied with either direct or
circumstantial evidence. See Randall v. State, 218 S.W.3d 884, 886-87 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d); see also Krebbs, 2010 WL 3584384, at *1 (noting that
the legal sufficiency standard of review does not apply to a review of covert-witness
testimony because the corroboration of such testimony is established by article 38.141).
Standing alone, the corroboration need not establish the defendant’s guilt beyond a
reasonable doubt; however, the evidence must show more than the defendant’s “mere
presence” at or near the scene of the crime. Malone, 253 S.W.3d at 257; see McAfee v.
State, 204 S.W.3d 868, 871-72 (Tex. App.—Corpus Christi 2006, pet. ref’d) (stating that
the corroborating evidence must provide “suspicious circumstances” in addition to
“mere presence” at the scene of a crime which would tend to rebut that the defendant’s
presence at the scene of the crime was more than simply an “innocent coincidence”).
The evidence is sufficient for purposes of article 38.141 if other “inculpatory facts and
circumstances in evidence tend to connect appellant to the offense.” Randall, 218 S.W.3d
at 886 (citing Torres v. State, 137 S.W.3d 191, 196 (Tex. App.—Houston [1st Dist.] 2004,
no pet.)).
The evidence here, absent the testimony of the confidential informant (“CI”), was
that Juan Miguel Torres, an investigator with the Johnson County Sheriff’s Office,
enlisted the CI to work as a confidential informant for the Johnson County S.T.O.P.
Special Crimes Unit in exchange for the dismissal of charges—unlawful possession of
drug paraphernalia—against her. According to Torres, the CI told him that she could
buy drugs from Bale, though she did not know Bale personally. The CI indicated that
Bale v. State Page 4
she would use a middle man, Bale’s friend Brian Houghtaling, to purchase the drugs.
The CI and Houghtaling arranged for the purchase of a quarter-ounce (i.e.,
approximately seven grams) of methamphetamine from Bale. The transaction took
place on May 6, 2008. Prior to meeting with Houghtaling and Bale, the CI met Torres at
a predetermined location. Torres arranged for Cleburne Police Officer Kelly Summey to
search the CI’s person and car for drugs. No drugs were found. Torres stated that, after
the searches were completed, the CI was outfitted with hidden audio/video recording
equipment and was given a cell phone to record the transaction. In addition, the CI was
given $425 to purchase a quarter-ounce of methamphetamine.
Torres recounted that, after the meeting: (1) the CI left to pick up Houghtaling;
(2) she and Houghtaling drove to Bale’s mobile home in the “Homesteads,” which is
located in Alvarado, Texas; (3) Houghtaling coordinated the transaction with Bale; and
(4) Bale, Houghtaling, and the CI went inside a detached shed to conduct the
transaction. Except for the short time that she, Houghtaling, and Bale went into the
shed, the CI was never out of the sight of Torres and his surveillance team. The State
contends that, even though the trio were out of the surveillance team’s sight when they
were in the shed, the videotape from the CI’s hidden camera captured the CI and Bale
completing the arranged transaction—$425 for a quarter-ounce of methamphetamine—
and Bale weighing and packaging the drugs before handing them over to the CI.
After the transaction took place, the CI drove Houghtaling back to his house. As
payment for his efforts, Houghtaling was given a “pinch” of the methamphetamine by
the CI. Torres specifically noted that this act was clearly indicated on the videotape.
Bale v. State Page 5
After leaving Houghtaling’s house, the CI met with Torres and immediately gave him
the drugs—a plastic bag later identified as State’s exhibit 1. The CI and her car were
once again searched for drugs. And, like before, no drugs were found. In addition, the
CI no longer had the $425 that was previously given to her by Torres.
After taking the plastic bag of drugs from the CI, Torres field-tested the bag’s
contents, put the plastic bag in an envelope after writing his initials, agency number, the
date, the time, and his badge number on the envelope, and placed the envelope in the
evidence locker at the S.T.O.P. headquarters. When shown State’s exhibit 1, Torres
identified the exhibit as the plastic bag the CI had given him on the day of the
transaction. Later, S.T.O.P. Investigator Mark Goetz took the envelope to the
Department of Public Safety (DPS) laboratory in Garland, Texas for testing. DPS
chemist Genevieve Medina conducted numerous tests on the substance and concluded
that the plastic bag contained 6.14 grams of methamphetamine.
Later, Goetz testified that he and the CI tried to arrange for an additional
purchase of methamphetamine from Bale. Goetz recalled meeting with the CI, Bale,
and Houghtaling for the second drug purchase. Goetz testified that: “Mr. Bale
indicated that he did not have the methamphetamine that we were looking for due to
some issues with his source either not having it at the time or not being available at the
time.” While talking to Bale, Goetz noticed that Bale had some methamphetamine on a
shelf in the shed, which Houghtaling took and used while Bale and Goetz were talking.
Goetz further testified that Bale did not tell him that he does not sell or store
methamphetamine; Bale simply told Goetz that he did not have enough to sell that day.
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While each of these circumstances taken alone might or might not be sufficient to
corroborate the CI’s testimony about the drug transaction, the weight of all of them
taken together provides the basis for a rational juror to conclude that this evidence
sufficiently tended to connect Bale to the charged offense. See Hernandez v. State, 939
S.W.2d 173, 178-79 (Tex. Crim. App. 1997). We overrule Bale’s sole issue.
III. CONCLUSION
We find that there was sufficient evidence that “tended to connect” Bale to the
offense for which he was convicted when taken without the CI’s testimony. See Randall,
218 S.W.3d at 886-87; see also Krebbs, 2010 WL 3584384, at *1. As such, we cannot say
that the trial court erred in denying Bale’s motion for a directed verdict. See Williams,
937 S.W.2d at 482; see also Madden, 799 S.W.2d at 686. Accordingly, we affirm the
judgment of the trial court.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 28, 2012
Do not publish
[CRPM]
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