November 18, 2004. DO NOT PUBLISH.
Appeal from the 34th Impact District Court of El Paso County, Texas, (TC# 20030D00189).
Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
This is an appeal from a jury conviction for delivery of 400 grams or more of cocaine. The trial court sentenced Appellant Enrique Villanueva to 15 years' in prison. Appellant raises two issues: that the evidence is legally and factually insufficient to support the conviction. We affirm. The facts of this case are simple and involve a narcotic sting arrest. Detective Johnny Paniagua of the El Paso County Sheriff's Department was assigned to the El Paso Metro Narcotics Task Force working undercover when he was told by a confidential informant about two men who wanted to sell ten kilos of cocaine. Detective Paniagua told the informant to have the two men call him. The detective received a phone call from the men, and over the course of a number of phone calls, he agreed to buy ten kilos of cocaine. He told the jury that he talked with both men, and on direct examination, he stated that it was Appellant who gave him instructions on where they would meet to complete the deal. The detective also testified that it was the Appellant who told him at some point, not clear from the record, that they only had five kilos of cocaine to sell that day. On cross-examination, the detective conceded that his arrest report only reported telephone conversations with the Appellant's codefendant, Jesus Garcia. It was agreed that the buy would take place in the Bassett Shopping Center parking lot, near the Big 8 grocery store. The detective was told that the two men would be waiting in a parked green Chevette sedan with Mexican license plates. When the detective arrived, the green sedan was parked with the front hood open and Appellant was standing in front of the engine compartment. Garcia was seated inside the car. The detective parked his car next to the green Chevette, got out, and went up to the Appellant. The detective testified that the Appellant told him: "The cocaine is in the back." The detective then walked over to the passenger side of the car where Garcia was seated. Garcia reached into the back seat and pulled out a gray plastic bag that contained five kilos of cocaine. Garcia handed it to Detective Paniagua who opened the bag to make sure that it was cocaine. Then the detective walked towards his car, and as he passed, asked the Appellant if they wanted to count the money there or go some where else. The Appellant, according to the detective, told him that they would count the money there, and walked alongside the officer. When they reached the rear end of the detective's car, the detective opened the tail gate and displayed a Christmas shopping bag with money. As the detective put the bag of cocaine into the car, he gave a signal for other officers to converge and arrest Appellant and Garcia. On cross-examination, the detective testified that he did not remember if he had recorded the fact that the Appellant "went with me to get the money" in his arrest report. The Appellant raises two issues, legal and factual sufficiency of the evidence, but he only prays for an acquittal. Nevertheless, we address both issues.