Bolden v. State

923 S.W.2d 730, 1996 Tex. App. LEXIS 2057, 1996 WL 218626
Court of Appeals of Texas·Decided April 29, 1996·No. No. 12-94-00276-CR·Published·Cited by 4 cases

Opinion

HOLCOMB, Justice.

Nelson Bolden (“Appellant”) appeals his conviction of engaging in organized criminal activity. The jury assessed Bolden’s punishment at 80 years’ imprisonment and a $10,-000 fine. Appellant was tried jointly with Montoya Caddell and James Brooks, who were charged with the same offense. We will affirm.

In his first three points of error, Appellant challenges the legal and factual sufficiency of the evidence and denial of his motion for an instructed verdict.

When an appellant challenges both the legal and factual sufficiency of the evidence, an appellate court must first determine whether evidence adduced at trial was [732] legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). The standard for reviewing the legal sufficiency of the evidence is “whether, after reviewing the evidence in the light most favorable to the prosecution, 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App.1991); Jackson v. State, 672 S.W.2d 801 (Tex.Cr.App.1984). After an appellate court determines that the evidence is legally sufficient to support the verdict under the Jackson standard, the court may then proceed to review factual sufficiency. Clewis, 922 S.W.2d at 129. In conducting a factual sufficiency review, this Court must view all the evidence impartially and “set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis, 922 S.W.2d at 134; Stone v. State, 823 S.W.2d 375 (Tex.App.—Austin 1992, pet. refd, untimely filed).

A person commits the offense of engaging in organized criminal activity if, with intent to establish, maintain, or participate in a combination, he commits, or conspires to commit, one of a number of enumerated offenses, including the unlawful delivery of a controlled substance. Tex.Penal Code Ann. § 71.02(a)(5) (Vernon 1992). A “combination” is defined as three or more persons who collaborate in carrying on criminal activities. Tex.Penal Code Ann. § 71.01(a) (Vernon 1992).

When, as here, the indictment alleges a conspiracy to commit the enumerated offense, the State must prove the defendant’s intent to participate in a criminal combination, and that the defendant performed some act, not necessarily criminal in itself, in furtherance of the agreement. Barber v. State, 764 S.W.2d 232, 235 (Tex.Cr.App.1988). We look first at the evidence of Appellant’s intention to participate in the combination, and, thereafter, at the evidence of whether Appellant participated in committing one or more of the overt acts alleged.

The evidence as to whether Bolden was involved in a conspiracy and whether he committed the overt act was largely circumstantial; however, in a circumstantial evidence case, it is not necessary that every fact point directly and independently to the guilt of the accused. The cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Beardsley v. State, 738 S.W.2d 681 (Tex.Cr.App.1987).

Direct evidence is rarely available to prove a conspiracy hatched and executed in secrecy. “Evidence of the acts and conduct of the conspirators, as well as circumstances surrounding these acts and conduct, can be used to show the existence of a positive agreement.” Kennard v. State, 649 S.W.2d 752, 763 (Tex.App.—Fort Worth 1983, pet. refd). Circumstantial evidence cases have no different standard of review than those cases supported by direct evidence. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Cr.App.1991). Almost invariably, circumstantial evidence, including the conspirator’s conduct, must be relied upon to prove the essential elements of the crime. Farrington v. State, 489 S.W.2d 607 (Tex.Cr.App.1972). Similar methods of operation, together with joint activities and relationships, support the finding of a single conspiracy. United States v. Ochoa, 609 F.2d 198 (5th Cir.1980); Kennard, 649 S.W.2d at 764.

The State’s evidence focused on the sale of crack cocaine in an area of Tyler known as the “Graveyard.” On December 14 and 15, 1990, Tyler police clandestinely videotaped a large number of apparent drug transactions; approximately 100 apparent purchases were observed during the five hours of videotaped surveillance. Typically, buyers drove into the area, and sellers approached the drivers while still in their ears. Sellers displayed “rocks” of crack cocaine, and exchanged merchandise and money through the buyer’s car window. In exchange for immunity from prosecution, two co-defendants, Ravin Tucker (“Tucker”) and Rosiland Guster (“Guster”), testified on be[733] half of the State. Tucker, who was arrested after buying a rock of cocaine from an unidentified seller, testified regarding the details of three crack cocaine purchases she made in the area, including the last purchase which was videotaped. Guster also testified to her own buying and selling of crack cocaine at the Graveyard. There was also evidence that undercover officers had purchased crack from some of the individuals and some of these transactions were videotaped.

Free access — add to your briefcase to read the full text and ask questions with AI

Bolden v. State, 923 S.W.2d 730, 1996 Tex. App. LEXIS 2057, 1996 WL 218626 (Tex. Ct. App. 1996).

923 S.W.2d 730 (Bolden v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Charles Frankie Nieto v. State
Court of Appeals of Texas, 2013
Kenneth Frantz Davidson v. State
Court of Appeals of Texas, 2005
Guadalupe Pinales v. State
Court of Appeals of Texas, 2002
Paul Thomas v. State
Court of Appeals of Texas, 1999