Charles Newman Smith, Jr. v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00668-CR
Charles Newman Smith, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 42388, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
OPINION
Charles Newman Smith, Jr., was charged with engaging in organized criminal activity
by conspiring with several people to commit the offense of “unlawful delivery, dispensation, or
distribution of a controlled substance, namely: four grams or more but less than 200 grams of
Methamphetamine.” See Tex. Penal Code § 71.02(a)(5) (setting out elements of offense of engaging
in organized criminal activity); Tex. Health & Safety Code § 481.112(a), (d) (governing offense of
delivery of controlled substance and providing that offense is first-degree felony if amount of
controlled substance was four grams or more but less than 200 grams). At the end of the guilt-or-
innocence phase of the trial, the jury found Smith guilty of the offense. At the end of the punishment
phase, the jury recommended that Smith be sentenced to twenty-five years’ imprisonment. See Tex.
Penal Code § 71.02(b) (explaining that, in general, offense level of engaging in organized criminal
activity “is one category higher than” underlying criminal offense committed); see also id. § 12.32(a)
(listing permissible punishment range for first-degree felony). The district court rendered its judgment
in accordance with the jury’s verdicts. In two issues on appeal, Smith challenges the sufficiency of
the evidence supporting his conviction and contends that the district court erred by failing to give
a unanimity instruction. We will affirm the district court’s judgment of conviction.
BACKGROUND
The indictment in this case alleged that “pursuant to a common scheme or continuing
course of conduct” and “with the intent to establish, maintain, or participate in a combination or in
the profits of a combination,” Smith collaborated to commit the offense of unlawfully delivering,
dispensing, or distributing methamphetamine in an amount between four and 200 grams. The
indictment specified that the combination consisted of Smith and “Nebes Montemayor, Guillermo
Reyna, Abel Cardoso, Jimmy Hardin, Amy Borseth, Glen Alexander, Timothy Blackard, Joy Perez,
Elizabeth Burch, Christopher Castillo, Cheri Gibbs, Kimberly Weston, Gina Magdaleno, and
Charles Davidson, Jr.”
This case originated from an extensive investigation of Hardin, which was undertaken
by various State and federal agencies over a period of several months. The agencies suspected that
Hardin was the center of a drug-trafficking operation involving several people. As part of the
investigation, the agencies monitored Hardin’s home to see who would visit the home and how often,
and the agencies also monitored Hardin’s phone calls and “utilized informants to make purchases”
of methamphetamine from Hardin. Two of the individuals that were recorded either calling Hardin
or receiving calls from Hardin were Smith and his girlfriend Cindy Brinkley. After listening to
phone calls in which potential drug exchanges were discussed, various law-enforcement personnel
2
would sometimes initiate traffic stops of the individuals who had driven to Hardin’s house or met
him at another location in an effort to verify that a drug exchange had occurred or was about to.
Although Smith challenges much of the evidence pertaining to him personally, neither
party disputes that the evidence presented during the trial established the following:
• An ounce is equivalent to twenty-eight grams and that an eightball is an
eighth of an ounce of methamphetamine, which is also three-and-a-half grams;
• Hardin was at the center of a criminal enterprise in which he sold fifteen to
twenty ounces of methamphetamine per week and that he sold to over 80
people who were identified through the wiretaps of his phone;
• Although over 80 people were identified through the wiretaps, the police only
investigated those individuals who purchased more than three-and-a-half
grams;
• Hardin received methamphetamine from at least the following two individuals:
Reyna, who was Hardin’s primary source, and Cardoso, who was Hardin’s
secondary source;
• Borseth was romantically involved with Hardin, lived with him, and helped
him sell drugs;
• Blackard worked with Hardin as Hardin’s enforcer, distributed drugs when
Hardin needed him to, and facilitated drug transactions;
• Alexander stored weapons and drugs at his workshop for Hardin and allowed
drug transactions to occur at the workshop;
• Montemayor acted as an interpreter for Reyna when Reyna would travel to
meet with his distributors in the United States, and Hardin was recorded asking
Montemayor for between ten and twenty ounces of methamphetamine;
• Hardin was recorded asking to buy five ounces of methamphetamine from
Cardoso, and the police initiated a traffic stop of Cardoso after listening to
this call and found over 137 grams of methamphetamine, which is almost five
ounces;
3
• Weston, who is Blackard’s wife, purchased methamphetamine from Hardin
on behalf of David Milam on several occasions in amounts ranging from half
of an ounce to an ounce and was arrested after the police initiated a traffic
stop and found over 56 grams of methamphetamine;
• The police initiated a traffic stop of Castillo after he left Hardin’s home, and
the police found over 251 grams of methamphetamine; and
• The police initiated a traffic stop of Burch after observing her interactions
with Hardin and recovered over twenty-seven grams of methamphetamine.
During the trial, various law-enforcement officers were called to the stand to discuss
their investigation, including the extensive surveillance that was performed, the phone calls that were
recorded, and the testing that was performed on substances collected from various individuals, and
the State also called Brinkley and Weston to the stand. When presenting his case, Smith called his
sister, Carrie Foster, and his friend, Karen Milder, to the stand. After listening to all of the evidence
presented, the jury determined that Smith was guilty of the crime alleged.
DISCUSSION
Sufficiency of the Evidence
In his first issue on appeal, Smith does not contend that there is insufficient evidence
to establish that a drug-trafficking scheme was in effect that centered around Hardin, but he contends
that “[t]he evidence is legally insufficient to support that [he] engaged in organized criminal activity.”
When challenging the sufficiency of the evidence, Smith asserts that “the State failed to prove that
with intent to establish, maintain, or participate[] in a combination or profits of a combination, [he]
participated in the distribution and sale of narcotics.” In particular, Smith urges that “[t]he State
failed to prove that [he] engaged in any combination with any of the indicted actors” and that if the
4
evidence proves that he is guilty of anything, “he is guilty of purchasing meth for his own personal
use.”1 Further, Smith notes that the State “never found large amounts of cash or drugs and did not
find any sort of evidence that would indicate Smith was a dealer, such as, Baggies, ledger, or a
scale.” Similarly, Smith highlights that in performing its investigation, the State never searched
him, his house, or his car. Finally, Smith contends that the State failed to produce any evidence
showing that he was “a dealer” other than the testimony of his girlfriend, Brinkley, who was also
an alleged accomplice.
Under the Penal Code, a person commits the offense of engaging in organized
criminal activity if, among other ways, “with the intent to establish, maintain, or participate in a
combination or in the profits of a combination . . ., the person commits . . . one or more of” the
enumerated offenses, including “unlawful . . . delivery, dispensation, or distribution of a controlled
substance or dangerous drug.”2 Tex. Penal Code § 71.02(a)(5). Further, the Penal Code defines a
1
During the trial, Foster and Milder both testified that Smith had a severe addiction to
methamphetamine that had lasted for decades, and Milder testified that Smith was not a dealer.
Similarly, Brinkley testified that Smith consumed a large amount of methamphetamine per day
and that she did not consider Smith to be a dealer. When describing Smith’s consumption of
methamphetamine, Brinkley related that Smith used a lot, but she also stated that the most she
had ever seen anyone use in a day was between one and one-and-a-half grams. However, as set out
later in the opinion, evidence was also introduced showing that Smith sold and delivered
methamphetamine. Where, as here, there are contradictory inferences from the evidence, we must
presume that the jury resolved those conflicts in favor of the verdict and defer to the jury’s
resolution. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also Wilcox v.
State, No. 03-01-00731-CR, 2003 WL 1338202, at *1 (Tex. App.—Austin Mar. 20, 2003, pet. ref’d)
(mem. op., not designated for publication) (explaining that “[t]he jury is free to reject or accept any
or all of the evidence presented by either party”).
2
The Penal Code specifies that a person can also be guilty of the offense if the person
“conspires to commit one or more” of the listed crimes. Tex. Penal Code § 71.02(a). However, in
this case, rather than assert that Smith committed or conspired to commit the offense of unlawful
delivery, dispensation, or distribution, the indictment only alleged that Smith committed the offense.
5
“combination” as “three or more persons who collaborate in carrying on criminal activities” and
explains that the “participants may not know each other’s identity,” that “membership in the
combination may change from time to time,” and that “participants may stand in a wholesaler-retailer
or other arm’s-length relationship in illicit distribution operations.” Id. § 71.01(a). Regarding
“profits,” the Code states that they are “property constituting or derived from any proceeds obtained,
directly or indirectly, from an offense listed in Section 71.02.” Id. § 71.01(c).
To satisfy the combination element, the State must prove that there was “an
agreement to act together in [a] continuing course of activity.” See Ledet v. State, 177 S.W.3d 213,
219 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); see also Munoz v. State, 29 S.W.3d 205, 208
(Tex. App.—Amarillo 2000, no pet.) (emphasizing that State must show “that the accused intended
to establish, maintain, or participate in a group of three or more” and “that the members of the group
intended to work together in a continuing course of criminal activities”). An agreement among a
group “to work on a common project” may be inferred when each person’s action is consistent with
realizing “the common goal.” McGee v. State, 909 S.W.2d 516, 518 (Tex. App.—Tyler 1995, pet.
ref’d); see Tex. Penal Code § 71.01(b) (providing that “[a]n agreement constituting conspiring to
commit may be inferred from the acts of the parties”). Moreover, “even a single criminal offense
can support a conviction” because “it is not the number of criminal actions that is determinative
but whether the intent to engage in continuous criminal activities was shown.” Arredondo v. State,
270 S.W.3d 676, 683 (Tex. App.—Eastland 2008, no pet.); see Bogany v. State, 54 S.W.3d 461, 463
(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (explaining that organized-crime statute “does not
require proof of a continuing series of criminal acts or violations” and that “[t]he only criminal act
that must be proved is the commission of, or conspiracy to commit, one of the specified crimes”);
6
Garcia v. State, 46 S.W.3d 323, 327 (Tex. App.—Austin 2001, pet. ref’d) (stating that “[t]he critical
element of a criminal conspiracy is the agreement among the conspirators to commit the criminal
offense”); see also Adams v. State, 40 S.W.3d 142, 144 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) (explaining that State must prove “intended continuity” and that evidence of agreement to
jointly commit single criminal act does not suffice); Smith v. State, 36 S.W.3d 908, 910 (Tex.
App.—Houston [1st Dist.] 2001, pet. ref’d) (stating that “[c]ontinuity implies something more
than a single ad hoc effort”); Munoz, 29 S.W.3d at 208 (internal citation omitted) (providing that
“the continuing course of criminal activity referred to must encompass more than one crime or
criminal episode”). “In proving the existence of a combination, the State need not demonstrate the
participation of all alleged members of the combination; the State need only prove the participation
of at least three of the named members of the combination.” Rodriguez v. State, 90 S.W.3d 340, 354
(Tex. App.—El Paso 2001, pet. ref’d).
To show a violation, “[t]he State is required to prove that the defendant committed
the predicate offense with the specific intent to participate in or facilitate a combination.” Id. “Intent
can be inferred from acts, words, and conduct of the accused” as well as the circumstances in which
the defendant’s actions occurred. DeLeon v. State, 77 S.W.3d 300, 312 (Tex. App.—Austin 2001,
pet. ref’d). “Further, in order to prove the defendant’s intent to participate in a combination, the
State must prove not only that the defendant knew of the existence of the combination, but also that
the defendant knew of the criminal activity of the group.” Rodriguez, 90 S.W.3d at 354.
Under a legal-sufficiency standard of review, appellate courts view the evidence in the
light most favorable to the verdict and determine whether “any rational trier of fact could have found
7
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). When performing this review, an appellate court must bear in mind that it is the
factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable
inferences “from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc. art. 36.13
(explaining that “jury is the exclusive judge of the facts”). Moreover, appellate courts must
“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.” Hooper
v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that
conflicting inferences were resolved in favor of the conviction and defer to that resolution. Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that
“direct and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its own
“to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d). Furthermore, reviewing courts “measure the sufficiency of the evidence by the so-called
hypothetically correct jury charge, one which 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
is tried.” See DeLay v. State, 465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014). The evidence is
legally insufficient if “the record contains no evidence, or merely a ‘modicum’ of evidence, probative
of an element of the offense” or if “the evidence conclusively establishes reasonable doubt.” Kiffe,
361 S.W.3d at 107 (quoting Jackson, 443 U.S. at 320).
8
As set out above, Smith complains that the only evidence presented during the trial
establishing his guilt of the predicate offense came from Brinkley, who was an alleged accomplice
and who agreed to enter a plea of guilty to the crime of engaging in organized criminal activity and
to testify for the State in cases involving members of the alleged combination in exchange for the
State recommending that she be sentenced to five years’ imprisonment. “A conviction cannot be
had upon the testimony of an accomplice unless corroborated by other evidence tending to connect
the defendant with the offense committed; and the corroboration is not sufficient if it merely
shows the commission of the offense.” Tex. Code Crim. Proc. art. 38.14; see also Medina v. State,
7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (noting that “[a] person is an accomplice if he
participates before, during, or after the commission of the crime and can be prosecuted for the same
offense as the defendant or for a lesser-included offense”). “When reviewing the sufficiency of
non-accomplice evidence under article 38.14, we decide whether the inculpatory evidence tends to
connect the accused to the commission of the offense.” Smith v. State, 332 S.W.3d 425, 442 (Tex.
Crim. App. 2011); see Roys v. State, 416 S.W.3d 229, 234 (Tex. App.—Amarillo 2013, pet. ref’d).
In performing this analysis, “the reviewing court eliminates all of the accomplice testimony
from consideration and then examines the remaining portions of the record.” Castillo v. State,
221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The non-accomplice evidence is viewed “in the light
most favorable to the verdict,” Knox v. State, 934 S.W.2d 678, 686 (Tex. Crim. App. 1996), and it
“need not directly link the defendant to the crime” or “‘establish his guilt beyond a reasonable
doubt,’” Roys, 416 S.W.3d at 234 (quoting Castillo, 221 S.W.3d at 691). Although “the accused’s
mere presence in the company of the accomplice before, during, and after the commission of the
9
offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence,
coupled with other suspicious circumstances, may tend to connect the accused to the offense.”
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). “Even apparently insignificant
incriminating circumstances may sometimes afford satisfactory evidence of corroboration.” Id.
“[T]he tends-to-connect standard does not present a high threshold.” In re C.M.G., 905 S.W.2d 56,
58 (Tex. App.—Austin 1995, no writ).
In her testimony, Brinkley explained that she entered into an agreement with the State
in which the State would recommend a lower sentence in exchange for her testimony and further
admitted that she had previously committed several felonies, including involuntary manslaughter
and forgery, had been incarcerated on two prior occasions, and had used methamphetamine “[o]ff
and on” for years. When describing her past criminal history, Brinkley said that she had “22 pages
of criminal history.” In addition, she admitted that she had lied in the past, and she also said that she
would do anything to stay out of prison that was reasonable and legal but insisted that she would not
“lie though.” Further, during her testimony, she also admitted to buying methamphetamine from
Hardin and to delivering it to her boss and to other people. When discussing the time that she
purchased methamphetamine and then delivered it to her boss, she related that she called Hardin,
that Hardin seemed to say that he did not have much in supply at the moment, that she later went
to Hardin’s home after he was able to restock his supply, that she obtained an ounce of
methamphetamine, and that she later delivered three-quarters of an ounce to her boss. In addition,
she testified that Smith was with her when she went to Hardin’s house on that occasion and several
other times.
10
Regarding Smith’s unlawful delivery, dispensation, or distribution of
methamphetamine, Brinkley recalled that on the same day that she asked for an ounce to deliver to
her boss, Smith also asked Hardin for and ultimately received three-quarters of an ounce. Further,
she explained that she and Smith would buy methamphetamine from Hardin “quite often” and “[a]t
least once a week” and that they would usually just buy “ounces” “or half-ounces, or quarter-ounces,
or whatever.” Moreover, she related that she witnessed Smith deliver methamphetamine to a woman
named Shannon Zieschang, that he made “[a] lot” of deliveries to Zieschang, and that Smith bought
ounces in order to deliver them to Zieschang. When describing how often and how much Smith sold
to Zieschang, Brinkley testified that Smith sold to Zieschang over a period of months and that “the
majority of whatever [he bought] would go to” Zieschang. In discussing the transactions, Brinkley
explained that Smith would bring the whole ounce to Zieschang’s home, that Zieschang would
“break off whatever it is she wanted” and take “like a gram or two,” and that Smith would charge
Zieschang “an extra $100 or something so he could make something off of it and then he would
have, you know, personal stuff and money.”
During the trial, evidence was presented corroborating Brinkley’s testimony regarding
Smith’s involvement in the delivery or distribution of methamphetamine through the testimony of
various law-enforcement personnel and through the admission of recordings of conversations
between Smith and Hardin.3 In one recording of a phone call that was played for the jury, Brinkley
3
In the trial, recordings of conversations between Hardin and Brinkley were also played
for the jury. On those recordings, Brinkley indicated that she wanted to make a purchase of
methamphetamine, and Hardin told Brinkley that he would call her when he had some to sell and
later told Brinkley to come over to his house after a new supply had arrived.
11
told Hardin that she wanted to buy an ounce for her boss and then handed the phone to Smith, and
Smith asked for “three quarters” for $750. On the recording, Hardin agreed to the terms and told
Smith and Brinkley where to meet him. During a subsequent call, Smith asked if he could swing by
“and see you if that’s cool” because he wanted a “whole one,” but Hardin explained that he “ain’t
got nothing” at that moment other than a “G,” that he was “gonna call them people right now,” and
that he would call Smith back afterwards. In a later call, Hardin told Smith that his “dude ran out
on me, I’m fixin to go check somebody else out right now,” and Smith asked Hardin to “[h]oller
when you get some alright.” Moreover, other recordings of later conversations were played for the
jury in which Hardin told Smith that he “got it” and in which Smith responded by saying that he
would head for Hardin’s house right away. Another set of recordings was played in which Brinkley
stated that she was in the room with Smith, in which Hardin asks Brinkley if she wants “a whole
one,” in which Brinkley asks Smith if he wants a whole one, in which Brinkley later answers
affirmatively to Hardin, and in which Smith later tells Hardin after they met up that the amount he
received “is one [and] a half short.”
In addition to the recordings summarized above, Officer William Reuter was called
to the stand to discuss, among other topics, the context in which those calls were made and the
reasons why law enforcement elected to investigate individuals who purchased three-and-a-half
grams or more from Hardin. In his testimony, Officer Reuter explained that he had been a narcotics
investigator for over twenty years and that he typically investigated “major drug trafficking
organizations.” Further, he testified that drug dealers and purchasers will often communicate through
code in order to discuss drug transactions without using the actual words in case the phone call was
12
being monitored by law enforcement. For example, Officer Reuter explained that when Hardin told
a caller to “come on over” or “I got you,” it meant that he had drugs available; that when Hardin told
Smith that he only had a “G,” he meant that he only had “a gram of methamphetamine left”; and that
when Hardin, Smith, and Brinkley talked about a “whole one,” they were referring to an ounce of
methamphetamine. Further, Officer Reuter related that the meanings of the code words and the
short-hand references to amounts were corroborated by “the surveillance and the traffic stops that
we were able to conduct” after people made purchases from Hardin.
When discussing the various recordings and the context in which those calls were
made, Officer Reuter testified that Brinkley asked to buy an ounce of methamphetamine, that
Brinkley then handed the phone to Smith, and that Smith then asked for three quarters of an ounce
or twenty-one grams for $750. When describing the phone call in which Hardin stated that he “got
it,” Officer Reuter explained that the conversation was a follow-up to the prior conversation in
which Smith asked Hardin to call him when he received a new supply of drugs. In the portion of
Officer Reuter’s testimony discussing the phone call in which Hardin said that he only had a “G”
left, Officer Reuter emphasized that Smith did not ask to buy the gram, which Officer Reuter
believed was inconsistent with the description of Smith as being someone who is highly addicted
to methamphetamine because someone who is highly addicted “wouldn’t turn anything down,”
and that Smith instead indicated that he would wait for a whole ounce, which Officer Reuter believed
was consistent with someone who was a dealer. He also explained that when Hardin informed
Smith that his “dude had skipped out on him,” Hardin’s main source, Reyna, had disappeared
and that Hardin was looking for another source.
13
Further, Officer Reuter explained that a “distributable amount” is “an eightball,”
which is “three-and-a-half grams of methamphetamine.” Moreover, he explained that this cut-off
amount was based on the knowledge that he obtained by debriefing distributors about patterns of
drug dealing and usage. In addition, he stated that based on his experience, if someone buys three-
and-a-half grams, the person has “the opportunity to sell some, use some, and the amount that’s sold
will help them buy more.”4 Officer Reuter testified that purchasing three-and-a-half grams is “quite
a bit” but admitted that he did not know if it would be an unusual amount to buy for personal
consumption because that “depends on how much the person uses.”
When discussing the amounts that Smith was purchasing, Officer Reuter agreed that
it would be unusual to buy three-quarters of an ounce or an ounce for personal use and explained that
if someone says they will pay $750 or $850 for methamphetamine, that usually means he is “selling
to supply [his] habit” and that for someone who is just using, he would likely buy some every day
because he would not “have enough money to buy a large amount.” Further, Officer Reuter stated
that someone who is purchasing three-quarters of an ounce or an ounce and who is reselling that
large of an amount will break the amount up and charge a higher rate. For example, he testified that
if someone buys three-quarters of an ounce and then sells it by the gram, he could collect “$2,100
roughly,” which he agreed was a large profit over the purchase price of $750. In addition, Officer
Reuter related that people who use methamphetamine do not want a large amount around their house
because the chances of it “getting stolen are pretty good.” Similarly, in relation to a seizure made
4
Consistent with Officer Reuter’s testimony, Brinkley explained that if she ever bought
“an eight ball,” she “would probably sell a couple of grams to make up the money for it and then
do the rest.”
14
after a traffic stop of Burch, Sheriff William Fritsch testified that an ounce of methamphetamine is
a large amount and explained that the amount was more likely for “resale” than for “personal use.”
In light of this evidence presented at trial, we must conclude that sufficient evidence
was introduced tending to connect Smith to the predicate offense and corroborating Brinkley’s
testimony. See Knox, 934 S.W.2d at 686-87; Roys, 416 S.W.3d at 234. In particular, the recordings
of Hardin’s phone calls with Smith demonstrate that on more than one occasion Smith asked to
purchase either three-quarters of an ounce or a full ounce of methamphetamine, that Smith and
Hardin made arrangements to meet to complete the transactions, and that Smith confirmed that at
least one of the transactions occurred by later informing Hardin that he did not obtain the full amount
that he requested. Moreover, the testimony from Officers Reuter and Fritsch both indicated that the
large amounts purchased by Smith were more consistent with resale than for personal use. In fact,
Officer Reuter explained that three-and-a-half grams, which is an eighth of an ounce, is an amount
that could be purchased for distribution purposes.
Bearing in mind the reasonable inferences that the jury was free to make from all of
the evidence and viewing the evidence in the light most favorable to the verdict, including the
testimony from Brinkley that Smith bought methamphetamine from Hardin regularly, that Smith
would buy between a quarter of an ounce to a full ounce, that the majority of what he bought
was resold and distributed to Zieschang, and that Smith delivered methamphetamine to Zieschang
often, we must also conclude that the evidence was legally sufficient to support a determination
that Smith committed the predicate offense of unlawful “delivery, dispensation, or distribution” of
methamphetamine in an amount between four and 200 grams. See Tex. Penal Code § 71.02(a)(5);
15
see also Tex. Health & Safety Code § 481.002(8) (defining “‘[d]eliver’” as “ to transfer, actually or
constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia,
regardless of whether there is an agency relationship” and as including “offering to sell a controlled
substance, counterfeit substance, or drug paraphernalia”), (14) (explaining that “‘[d]istribute’ means
to deliver a controlled substance other than by administering or dispensing the substance.”).
Regarding the combination element, we note that Smith does not dispute that the
evidence established the existence of a combination involving Hardin and instead asserts that the
evidence is insufficient to establish that Smith intended to be a part of the combination or participate
in the profits of the combination.5 As set out previously, the evidence established that Hardin sold
between fifteen and twenty ounces of methamphetamine per week; that Hardin’s suppliers were
Reyna and Cardoso; that Borseth, Blackard, and Alexander aided Hardin in making various drug
transactions and in storing the drugs; and that Hardin sold methamphetamine to Weston, Castillo,
Burch, and others. In fact, Officer Reuter explained that through his investigation, he ultimately
determined that there was a combination involving Montemayor, Reyna, Cardoso, Hardin, Borseth,
Alexander, Blackard, Burch, Castillo, Weston, Magdaleno, Davidson, and Smith and that they
were collaborating and engaging in criminal activity by delivering methamphetamine in an amount
5
We note that rather than allege that the combination consisted of Smith and two or more
of the following individuals, the indictment alleged that the combination consisted of Smith and all
of the listed individuals. However, the jury charge specified that the combination consisted of
Smith “and at least two of the following” people originally listed in the indictment. Cf. Delay v. State,
465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014) (emphasizing that sufficiency reviews examine
evidence in light of “hypothetically correct jury charge”); Rodriguez v. State, 90 S.W.3d 340, 354
(Tex. App.—El Paso 2001, pet. ref’d) (explaining that State only needs to prove participation by
three people alleged to be in combination).
16
that was greater than four grams but less than 200 grams and that was greater than 200 grams in
certain cases.
Moreover, the recordings and testimony from Officer Reuter established that Smith
made arrangements to make several purchases of methamphetamine over a period of weeks. The
recordings and the testimony from Officer Reuter also demonstrated that when Smith contacted
Hardin on two occasions about purchasing methamphetamine, Hardin informed Smith that he was
out of methamphetamine and that he promised to contact one of his suppliers to get more, and Smith
repeatedly asked Hardin to contact him after receiving another supply. Further, those recordings
and the testimony of Officer Reuter revealed that Hardin told Smith that he decided to contact
another supplier when the first one was unavailable and that Hardin later told Smith that he had
obtained a new supply.
When discussing the phone calls mentioned above, Officer Reuter explained that the
calls revealed that there was a combination of at least four people, including Smith, Hardin, Reyna,
and the other supplier that Hardin referenced, and he related that for combinations in drug cases,
“[y]ou have the suppliers, you have the distributors, and people that would get distributable amounts
to redistribute it.” In addition, Officer Reuter testified that there was a continuing scheme to distribute
methamphetamine and that the phone calls showed a plan to establish, maintain, or participate in a
combination or the profits from a combination. Moreover, Brinkley testified that she and Smith
bought methamphetamine from Hardin at least once a week and that the majority of what Smith
bought was sold to Zieschang in a manner that would ensure that Smith obtained a profit from each
sale. Similarly, Officer Reuter explained that if someone paid the prices that Smith did for the large
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amounts at issue and then broke down the amount into smaller amounts for resale in the manner
described by Brinkley, the person would be able to make a significant profit per purchase.
Viewing the evidence in the light most favorable to the verdict and bearing in mind
the reasonable inferences that the jury was free to make from that evidence, we must conclude that
the jury could have inferred that there was an agreement between Smith and at least two of the
individuals named in the indictment to engage in a continuing course of criminal conduct involving
the distribution of methamphetamine, that Smith was aware of the combination and of the criminal
activity, and that Smith committed the offense of unlawful “delivery, dispensation, or distribution
of” methamphetamine “with the intent to establish, maintain, or participate in” the combination “or
in the profits of” the combination. See Tex. Penal Code § 71.02(a)(5). Compare Williams v. State,
No. 11-12-00103-CR, 2014 WL 3865786, at *4 (Tex. App.—Eastland July 31, 2014, no pet.) (mem.
op., not designated for publication) (finding evidence sufficient where police officer witnessed
multiple drug transactions at defendant’s home over course of more than one month, where
surveillance footage showed activity consistent with drug dealing, where witnesses testified
that defendant and others sold them drugs at defendant’s house, where witness said she observed
drug transactions at house and saw defendant divide cocaine with others, and where police found
large amounts of cash), Valley v. State, No. 11-11-00042-CR, 2013 WL 3336614, at *2-5 (Tex.
App.—Eastland June 27, 2013, no pet.) (mem. op., not designated for publication) (holding that
evidence was sufficient to support determination that defendant acted in combination with Edward
Lotz, Jack Baker, and Edgar Cruz to deliver methamphetamine where it showed that undercover
officer attempted to purchase methamphetamine from Lotz, that Lotz said that he did not have any
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drugs on him and made phone call to defendant, that defendant arrived at Lotz’s home and handed
Lotz bag containing methamphetamine after Lotz gave defendant money, that Lotz obtained drugs
from defendant ten times over six months, that Jennifer Lawhorn purchased methamphetamine from
defendant fifteen times over three months before being pulled over by police, that Baker sold half
ounce of methamphetamine to defendant every day or every other day for six to eight months, and
that Cruz was one of Baker’s suppliers), Mayfield v. State, 906 S.W.2d 46, 49-51 (Tex. App.—Tyler
1995, pet. ref’d) (affirming conviction where testimony from undercover officer, video surveillance,
and testimony from one of alleged dealers in group established, at minimum, that defendant assisted
drug dealer in drug exchange for money, linked buyers with sellers in exchange for cut of drugs,
knew location at which he could “replenish his supply of drugs,” “knew which street sellers sold
sheetrock instead of cocaine to customers,” and “informed the customers when they had been ‘ripped
off’ by a street seller who sold sheetrock”), and Rainey v. State, 877 S.W.2d 48, 51-52 (Tex.
App.—Tyler 1994, no pet.) (determining that evidence, including video surveillance over period of
time in area known for drug trafficking, was sufficient where it captured several drug transactions,
including two conducted by defendant, showed defendant and others acting as lookouts to protect
one another from police, established that officers made several undercover drug purchases from
members of alleged combination, and documented that many of purchases occurred in same area,
involved same type of drug, had common wholesalers, and had common price established by group),
with Hart v. State, 89 S.W.3d 61, 65-66 (Tex. Crim. App. 2002) (concluding that evidence was
insufficient to support conviction where evidence showed that defendant helped plan single theft
and participated in that theft but where no evidence was presented showing that defendant was
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aware of ongoing theft ring), and Munoz, 29 S.W.3d at 210-11 (reversing conviction for engaging
in organized criminal activity where evidence showed that “[s]everal individuals came together
with the intent to consummate one particular illegal act and in the course of doing so, committed
other crimes” and that “when the particular act was consummated, nothing suggested that they
intended, desired, or agreed to continue working together”).
For all of these reasons, we overrule Smith’s first issue on appeal.
Unanimity Instruction
In his second issue on appeal, Smith asserts that the district court “committed jury
charge error by failing to give a unanimity instruction as to each separate criminal incident alleged
at trial and the separate actors, as set out in the indictment.”
Appellate courts review claims regarding alleged jury-charge errors under a “two-
pronged test,” see Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d),
with the first prong being a determination regarding “whether error exists,” Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005). Regarding whether there was error in the jury charge, the
governing law in Texas requires that a jury verdict be unanimous in all criminal cases. See Tex.
Code Crim. Proc. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). In
other words, “the jury must be unanimous in finding every constituent element of the charged
offense in all criminal cases.” Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). In this
context, unanimity “means that the jury must ‘agree upon a single and discrete incident that would
constitute the commission of the offense alleged.’” Cosio, 353 S.W.3d at 771 (quoting Stuhler v.
State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). Accordingly, “‘the jury must be instructed
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that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based
on the evidence, that meets all of the essential elements of the single charged offense beyond a
reasonable doubt.’” Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014) (quoting Cosio,
353 S.W.3d at 776).
Regarding when non-unanimity issues might arise, the court of criminal appeals has
explained that there are “three variations that may result in non-unanimous verdicts as to a particular
incident of criminal conduct that comprises the charged offense.” Cosio, 353 S.W.3d at 771 (internal
footnote omitted). Moreover, the court warned that “[n]on-unanimity may result in each of these
situations when the jury charge fails to properly instruct the jury, based on the indicted offense(s)
and specific evidence in the case, that its verdict must be unanimous.” Id. When presenting his
issue on appeal, Smith relies on the second set of circumstances identified by the court of criminal
appeals in which it explained that “non-unanimity may occur when the State charges one offense
and presents evidence that the defendant committed the charged offense on multiple but separate
occasions” and when “[e]ach of the multiple incidents individually establishes a different offense
or unit of prosecution.” See id. at 772 (internal footnote omitted). Accordingly, the court explained
that “to ensure unanimity,” the jury charge “would need to instruct the jury that its verdict must be
unanimous as to a single offense or unit of prosecution among those presented.” Id.
However, the need for jury unanimity “is not violated” if a jury charge allows the
jury to chose “among various alternative manner and means of committing the same” offense as
it is statutorily defined. Jourdan, 428 S.W.3d at 94. A “jury must unanimously agree about the
occurrence of a single criminal offense, but they need not be unanimous about the specific manner
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and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 423 (Tex. Crim.
App. 2011); see Miranda v. State, 391 S.W.3d 302, 310 (Tex. App.—Austin 2012, pet. ref’d)
(explaining that “[j]ury unanimity is required with respect to all essential elements of the offense at
issue; however, the jury need not unanimously agree on the specific method of committing a single
offense”). “‘[M]anner or means’ describes how the defendant committed the specific statutory criminal
act.” Ngo, 175 S.W.3d at 745.
The relevant portions of the jury charge in this case provided as follows:
The elements of organized criminal activity by committing Unlawful
Delivery, Dispensation, or Distribution of a Controlled Substance, namely: four
grams or more but less than 200 grams of Methamphetamine are that—
1. The defendant, committed Unlawful Delivery, Dispensation, or
Distribution of a Controlled Substance, namely: four grams or more
but less than 200 grams of Methamphetamine, and
2. The defendant did this with the intent to establish, maintain, or
participate in a combination or in the profits of a combination.
You must all agree on elements 1 and 2 listed above. If you all agree the state
has proved, beyond a reasonable doubt, both of the two elements listed above, you
must find the defendant “guilty” [of the charged offense] . . . and so indicate on the
attached verdict form.
...
Now bearing in mind the foregoing instructions, if you believe beyond a
reasonable doubt that [Smith] from on or about the 1st day of May, 2013 through on
or about the 4th day of December, 2013, and pursuant to a common scheme or
continuing course of conduct, in the County of Burnet and State of Texas, as charged
in the indictment, did then and there with the intent to establish, maintain, or
participate in a combination or in the profits of a combination, said combination
consisting of the defendant and at least two of the following persons: Nebes
Montemayor, Guillermo Reyna, Abel Cardoso, Jimmy Hardin, Amy Borseth, Glen
Alexander, Timothy Blackard, Joy Perez, Elizabeth Burch, Christopher Castillo,
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Cheri Gibbs, Kimberly Weston, Gina Magdaleno, or Charles Davidson, who
collaborated in carrying on the criminal activity, . . . you will find [Smith] guilty of
the offense.
When asserting that the charge is erroneous, Smith points out that “numerous actors
were” listed in the charge and argues that “[w]ithout any type of unanimity charge,” the jury was
allowed to reach a non-unanimous decision regarding which two individuals “acted in combination
with” Smith. Cf. Cosio, 353 S.W.3d at 770, 774 (determining that there was error in jury charge
where charge contained four felony counts, where evidence showed that there was more than one
occasion of misconduct supporting each count, and where jury charges generally instructed jury at
end of each charge that jury’s verdict must be unanimous but did not specify that it had to be
unanimous about which instance constituted commission of offense for each count and explaining
that charge “allowed for the possibility that the jury rendered non-unanimous verdicts”); Ngo,
175 S.W.3d at 742 & n.5, 745, 749 (concluding that jury charge for offense of credit card abuse that
specified in “‘boilerplate’ section” of charge dealing with jury-foreperson selection that jury must
unanimously agree “upon a verdict” and allowed jury to convict if defendant stole card, received
stolen card, or fraudulently presented card was erroneous because it did not inform jury that “it
was required to reach a unanimous verdict concerning one specific criminal act” and, accordingly,
could have misled jury “into believing that only its ultimate verdict of ‘guilty’ need be unanimous”);
Francis v. State, 36 S.W.3d 121, 122, 125 (Tex. Crim. App. 2000) (op. on reh’g) (concluding there
was jury-charge error allowing for non-unanimous conviction where defendant was charged with one
count of indecency, where jury charge allowed conviction on finding that defendant touched breasts
or genitals of victim, where State presented evidence of four acts occurring on different dates with
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two acts involving improper touching of victim’s breasts and two acts involving improper
touching of victim’s genitals, and where State “elected to pursue a conviction on two of the
incidents, one involving the touching of the victim’s breasts and one involving the touching of the
victim’s genitals” because “it is possible that six members of the jury convicted appellant on the
breast-touching offense (while the other six believed he was innocent of the breast-touching) and six
members convicted appellant on the genital-touching offense (while the other six believed he was
innocent of the genital-touching)”). Moreover, Smith contends that the testimony regarding “a
voluminous amount of calls, street slang, and drug users and sellers” as well as the large amount of
transcripts of calls relied on during the trial could have allowed the jury to convict Smith without
agreeing about “each individual incident.” Accordingly, Smith asserts that “all of the counts in the
instant case required a separate unanimity instruction for each ‘single, specific, criminal act,’ alleged
for each count” and that the instructions should have informed the jury that it “must not find the
defendant guilty of this count unless you all agree on which incident, or incidents occurred, if you
believe that the incident or incidents occurred at all, beyond a reasonable doubt. If you so believe,
you need not all agree on every incident alleged for this count, as long as there is one incident, on
which all the jurors are unanimous as to whether this incident occurred.”6
As an initial matter, we note that we must disagree with Smith’s argument that the
jury charge contained multiple counts pertaining to different offenses. Both the indictment and the
6
In this issue, Smith repeats his arguments from the first issue asserting that the evidence
shows that “if Smith is guilty of anything, he is guilty of purchasing meth for his own personal use.”
However, as set out in the first issue, sufficient evidence was presented to support the jury’s
determination that Smith committed the offense of unlawful “delivery, dispensation, or distribution”
of methamphetamine.
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jury charge listed only one offense for engaging in organized criminal activity. Similarly, we must
also disagree with Smith’s suggestion that there was no unanimity instruction in this case. Although
the jury charge did not contain the word unanimous, see Ngo, 175 S.W.3d at 749 n.44 (noting that
“[t]here is . . . nothing in the Texas Constitution, statutes, or case law that requires a jury charge to
contain the explicit words ‘unanimous’ or ‘unanimously’”), it did instruct the jury members, as set
out above, that they must “all agree” that the two elements of the offense were met before finding
Smith guilty and that they must “all agree” that the State proved both elements beyond a reasonable
doubt, see Curry v. State, 222 S.W.3d 745, 753 (Tex. App.—Waco 2007, pet. ref’d) (noting that
courts presume that jury followed general unanimity instruction). Moreover, unlike some of the
cases relied on by Smith in which boilerplate unanimity instructions were included at the end of the
charges separate from the paragraphs applying the governing law to the facts and were determined
to be defective, see, e.g., Cosio, 353 S.W.3d at 774; Ngo, 175 S.W.3d at 745, 749, the unanimity
instruction here appeared in the section of the charge entitled “APPLICATION OF THE LAW TO
THE FACTS” right after the elements of the offense in question were listed and immediately before
the particular allegations from the indictment were set out.
In addition, although Smith correctly points out that several individuals were
alleged to have been involved in the combination and to have performed various acts in furtherance
of the combination, “the names of various coconspirators and the various overt acts alleged [are]
alternate means of committing the offense.” Bogany, 54 S.W.3d at 463; see Garcia, 46 S.W.3d at
327 (determining that “[t]he names of the various coconspirators and the various overt acts alleged
in the indictment were, in effect, alternate means of committing the offense” and “that the identities
25
of the persons with whom [the defendants] conspired, and the overt acts actually committed pursuant
to the agreements, were preliminary fact issues as to which jury unanimity need not be required”);
cf. O’Brien v. State, 482 S.W.3d 593, 606 (Tex. App.—Houston [1st Dist.] 2015, pet. granted)
(providing that “when an indictment for engaging in organized criminal activity alleges the
commission of more than one overt act, jury unanimity is not required with regard to the overt act
performed”); Renteria v. State, 199 S.W.3d 499, 508 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d) (concluding that jury unanimity was not required where indictment alleged single offense of
organized criminal activity with two alternative means by listing two types of theft). Accordingly,
“the jury may return a general verdict if the evidence is sufficient to support a finding under any of
the theories submitted.” Bogany, 54 S.W.3d at 463; see also Kitchens v. State, 823 S.W.2d 256, 258
(Tex. Crim. App. 1991) (providing that “‘there is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie the verdict’” (quoting Schad v. Arizona,
501 U.S. 624, 632 (1991) (plurality opinion))); cf. Martinez v. State, 129 S.W.3d 101, 103 (Tex.
Crim. App. 2004) (explaining that “[t]he unanimity requirement is not violated by instructing the
jury on alternate theories of committing the same offense, in contrast to instructing the jury on two
separate offenses involving separate incidents”).
For these reasons, we must conclude that the fact that the jury charge in this case did
not require juror unanimity regarding the overt acts performed or the members of the combination
did not render the charge erroneous. See Bogany, 54 S.W.3d at 463; see also Garcia, 46 S.W.3d
at 328 (concluding that district court did not err by refusing requested jury instruction). Having
determined that the jury charge did not contain an error as alleged by Smith, we need not evaluate
26
any potential harm stemming from the alleged error. See Bogany, 54 S.W.3d at 463; see also
Swearingen, 270 S.W.3d at 808 (explaining that amount of harm needed for reversal for jury-charge
error depends on whether complaint regarding “that error was preserved in the trial court”); Neal v.
State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (stating that if no objection was made, reversal
is warranted only if error resulted in “egregious harm”).
Accordingly, we overrule Smith’s second issue on appeal.
CONCLUSION
Having overruled both of Smith’s issues on appeal, we affirm the district court’s
judgment of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: August 30, 2016
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