No. 05-02-00861-CR.
Opinion Issued April 16, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-57314-MI. Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
Opinion By Justice JAMES
Arturo Solario appeals his conviction for delivery of 400 or more grams of methamphetamine. After the jury found appellant guilty, the trial court sentenced appellant to sixteen years' imprisonment and a $2500 fine. Appellant brings four points of error contending the evidence is legally and factually insufficient to support his conviction. We affirm.
FACTUAL BACKGROUND
Before September 28, 2001, undercover Dallas Police Officer Noel Carrasco had made several purchases of methamphetamine from Geraldo Silva. During those transactions, Silva had people with him, but he did not have appellant with him. On September 28, 2001, Carrasco arranged to purchase methamphetamine from Silva in a hotel parking lot. Carrasco drove to the parking lot with fellow undercover officer Michael Armendariz. The police had cameras set up in multiple places to film the transaction, and many officers were on hand to arrest Silva and appellant after the transaction was completed. Silva arrived, on foot, with appellant. As they approached the officers, appellant entered a fenced-off area surrounding a dumpster and walked around the dumpster before rejoining Silva. Carrasco greeted both Silva and appellant. Silva tried to get Carrasco to hold the transaction at another location, but Carrasco refused. Finally, Silva agreed to hold the transaction there, and Silva told appellant to get the car. Appellant drove the car into the parking lot to where Carrasco had parked. Armendariz walked to the driver's side of Silva's car, but he could not open the back door. Appellant pointed to the passenger side and told Armendariz the "soda" was in the back seat on the passenger side. Armendariz opened the rear passenger door and got in the car, and he saw a box for a twelve-pack of soda on the rear passenger-side floorboard. Inside the box was 2.2 kilograms of methamphetamine. Methamphetamine has a unique odor, and Armendariz could smell the methamphetamine while he was sitting in the car. Armendariz retrieved some of the methamphetamine, and he and Carrasco gave the "bust" signal. When the arresting officers approached, Silva tried to flee, but appellant did not. Appellant testified he met Silva while working at Fiesta. Appellant told Silva he needed a place to live, and Silva told appellant he could sleep in his living room. On September 28, 2001, three days after coming to live with Silva, appellant asked Silva to drive him to work so he could talk to the manager. Silva told appellant he would take him to work, but he needed to stop and talk to some friends on the way. Appellant followed Silva into the hotel parking lot and met Carrasco and Armendariz. Appellant admitted walking around the dumpster, but he testified he did not know why he did that. Appellant knew the soda box was in the car, but he testified he did not know what was in the box. Silva told appellant they were leaving and to get the car, Silva threw the keys to him, and appellant got the car. Appellant drove the car into the parking lot and got out. Armendariz asked appellant where the drugs were, and appellant told him he did not know anything about any drugs. Armendariz asked him where the soda carton was, and appellant told him it was in the back seat but that he did not know what was in it. Appellant also testified he never smelled any drugs in the car. Appellant said he did not try to run away from the police because he did not know the car had drugs in it. The jury charge allowed the jury to convict appellant for acting alone or for acting with intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid Silva's delivery of methamphetamine. SUFFICIENCY OF THE EVIDENCE
Appellant's four points of error challenge the legal and factual sufficiency of the evidence to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. See Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction as a party. The evidence of whether appellant knew there were drugs in the car and whether he was assisting a drug transaction is disputed. Carrasco and Armendariz testified appellant could hear Carrasco's and Silva's conversation in the parking lot about the drug transaction, the drugs had a unique odor the driver of the vehicle would have been able to smell, appellant told Armendariz the drugs were in the back seat, and appellant told Armendariz which door to open to get to the drugs. Appellant testified he did not know Silva was going to conduct a drug transaction, did not know there were drugs in the car, could not smell any drugs in the car, and did not know Armendariz was looking for drugs in the car. After reviewing all the evidence in the light most favorable to the verdict, we conclude a reasonable juror could find appellant acted with the intent to promote or assist the commission of the offense and aided or attempted to aid Silva's commission of the offense. Accordingly, we hold the evidence is legally sufficient to support appellant's conviction. We overrule appellant's third point of error. After reviewing all the evidence in a neutral light, we conclude the proof of appellant's guilt as a party to the delivery of more than 400 grams of methamphetamine is not so obviously weak as to undermine confidence in the jury's determination, nor is the proof of appellant's guilt greatly outweighed by contrary proof. Accordingly, we hold the evidence is factually sufficient to support appellant's conviction. We overrule appellant's fourth point of error. Having found the evidence legally and factually sufficient to support appellant's conviction as a party, we need not address appellant's first and second points of error challenging the legal and factual sufficiency of the evidence to convict him as the sole actor. See Tex. R. App. P. 47.1. We affirm the trial court's judgment.