Eustacio Martinez Robles v. State

• Court: Court of Appeals of Texas
• Decided: August 17, 2006
• Docket: 14-05-00713-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 17, 2006

Affirmed and Memorandum Opinion filed August 17, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00713-CR

EUSTACIO MARTINEZ ROBLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 999,665

M E M O R A N D U M   O P I N I O N

Appellant, Eustacio Martinez Robles, appeals his conviction for possession of a controlled substance, specifically cocaine weighing more than 400 grams, with intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). After pleading not guilty, appellant was found guilty by a jury. Appellant=s conviction was enhanced by two prior felony convictions, and the trial court sentenced appellant to twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen. Code Ann. ' 12.42(d) (Vernon 2003). In two issues, appellant argues the evidence is legally and factually insufficient to support the verdict. We affirm.

Factual and Procedural Background

As a result of a federal drug charge, Robert Montalvo agreed to become a confidential informant working with Drug Enforcement Administration Special Agent Dwayne Dodds.

I.        The Confidential Informant=s Testimony

Montalvo testified he first met appellant in a carpet store in early 2004 when appellant sold Montalvo carpet to be used in a construction project. While appellant installed the carpet, the two talked and Montalvo informed appellant he had been arrested on a federal conspiracy charge. Appellant then told Montalvo to give him a call if he ever wanted to buy cocaine. As he was required to do, Montalvo notified Dodds about his conversation with appellant. For reasons unknown to Montalvo, Dodds was not able to pursue the lead at that time.

Montalvo contacted appellant in August 2004 to discuss the purchase of two kilograms of cocaine. Montalvo recorded several of his conversations with appellant, and tapes and transcripts of those conversations were entered into evidence. Montalvo identified the voices on the recordings as his and appellant=s. Montalvo testified that, as a result of these conversations, appellant agreed to sell Montalvo=s buyer two kilograms of cocaine for $16,300 per kilogram. In addition, Montalvo learned that appellant=s supplier=s name was AFlaco@ and that appellant had worked out with a reluctant Flaco that Montalvo and his buyer would have an opportunity to inspect the drugs and get a sample before finalizing the deal.

On September 3, 2004, Montalvo called appellant at approximately 10:00 a.m. to ask appellant if he was ready. Appellant said he was, but he would have to call his supplier.  Appellant called Montalvo back about five minutes later and they agreed to meet at a Pep Boys store. Montalvo testified he and his vehicle were searched by officers involved in the investigation, and no drugs were found. In addition, the officers gave Montalvo a digital recorder. At the Pep Boys, appellant got in Montalvo=s vehicle, and they drove to two different convenience stores. At the second convenience store, Montalvo testified appellant received a call letting him know the cocaine was there. Montalvo then drove to a house located at 7723 Morley.

Once at 7723 Morley, appellant knocked on the door and Noe Mondragon answered the door. Appellant introduced Mondragon to Montalvo as Flaco. Appellant and Mondragon spoke briefly in the living room, and Mondragon went to another room and returned with a shopping bag containing two kilograms of cocaine. They then conversed about the cocaine and its purity. Montalvo testified the cocaine was wrapped in a brownish, clear tape.  According to Montalvo, only Mondragon handled the cocaine. Montalvo also testified he told Mondragon he needed a sample for his buyer to make certain that was what the buyer wanted. Mondragon proceeded to cut into one of the containers of cocaine and gave Montalvo a sample. Mondragon then cut open the second container to show Mondragon that both containers were the same. As appellant and Montalvo were preparing to leave, Mondragon told Montalvo that if he was not available, then Montalvo would have to give the money to Esteban Alvarado, who had been present in the living room the whole time. Montalvo told Mondragon they would be back, and he and appellant left the house after spending only two or three minutes inside.

Montalvo called Dodds and told him everything was good. Montalvo drove with appellant to a nearby restaurant. At trial, Montalvo identified State=s Exhibit 20 as the sample of cocaine Mondragon had given him to show to his buyer. Montalvo testified he placed the cocaine sample in an overhead console in his vehicle and left it there when he and appellant went into the restaurant. Appellant and Montalvo ordered food and waited in the restaurant.  Eventually, officers came and retrieved the cocaine sample from Montalvo=s vehicle and detained appellant and Montalvo.

II.       Other Evidence

Special Agent Dodds testified that Montalvo informed him of his conversation with appellant in early 2004, but he was not able to commence an investigation involving appellant until August 2004. For that investigation, Dodds instructed Montalvo to tell appellant he had a prospective buyer who wanted to buy kilogram quantities of cocaine. Dodds testified he always directed Montalvo on what to do during investigations and Montalvo was supposed to inform Dodds about any conversations he had regarding drug trafficking. Dodds further instructed Montalvo to document his conversations with appellant and attempt to record any conversations they had regarding the purchase of cocaine. Towards that end, Dodds provided Montalvo with a recorder and tapes. According to Dodds, Montalvo also purchased his own digital recorder and used it during the investigation.

In August 2004, Montalvo and Dodds began their effort to purchase two kilograms of cocaine from appellant. Dodds testified the plan was for Montalvo to act as a broker by telling appellant someone from out of town would be purchasing two kilograms of cocaine, and he would need a sample to take to the prospective buyer. Montalvo would then deliver the sample to the investigating officers who would obtain a search warrant, execute the search warrant, obtain the cocaine, and arrest anyone involved in the transaction.

On September 2, 2004, Dodds observed Montalvo meet appellant at a Home Depot to make final arrangements for the two-kilogram purchase scheduled for the next day.  Dodds testified Montalvo was wired for the meeting, the recording device worked, and Dodds turned the tape over to Department of Public Safety Sergeant Renard Brown, who misplaced it. Brown testified Montalvo was to meet appellant the next day and go to an individual=s house where they would inspect the two kilograms of cocaine. The seller would give Montalvo a sample, who would then bring it to the buyer so he could make a decision whether he would buy the two kilograms of cocaine. Montalvo told Dodds the price would be $16,300 per kilogram.

Montalvo had agreed to meet appellant at a Pep Boys store on September 3, 2004, at 11:00 a.m. At 10:30 a.m., officers working with Dodds searched Montalvo and his vehicle to make certain he did not possess any cocaine. The officers also equipped Montalvo with a digital recorder, but it turned out later the recorder was inoperable as it had no batteries. Dodds had arranged for numerous law enforcement officers to participate in the investigation to maintain surveillance on Montalvo and appellant. At approximately eleven o=clock, Dodds observed Montalvo arrive at the Pep Boys parking lot and saw appellant enter Montalvo=s vehicle. Montalvo then drove to a nearby convenience store, which both Montalvo and appellant entered. Montalvo exited the store and called Dodds while appellant remained inside. Montalvo told Dodds they were going to have to travel to the seller=s residence to obtain the cocaine. Montalvo then drove to a second convenience store with appellant.

At approximately 11:55 a.m., Dodds and the surveillance officers observed Montalvo and appellant exit the second convenience store and drive directly to a house located at 7723 Morley. Dodds observed Montalvo and appellant enter the 7723 Morley residence. After only two to three minutes, Dodds observed Montalvo and appellant exit the house and drive away in Montalvo=s vehicle. Several officers followed Montalvo=s vehicle while Dodds and other officers remained watching the 7723 Morley residence. Montalvo had been instructed that once he had the sample, he was to drive with appellant to a nearby restaurant and wait while the officers obtained and executed a search warrant for the residence and made the arrest. While in transit to the restaurant, Montalvo called Dodds and told him he had the sample, the two kilograms of cocaine were there, and he needed to go and get the money.  At that point, Dodds relayed that information to Sergeant Brown, who sought a search warrant based upon that information. Dodds and the other officers maintained surveillance of the 7723 Morley residence, as well as Montalvo and appellant at the restaurant.

While waiting for the search warrant, Dodds observed Sergio Escobar leave the 7723 Morley residence and walk across the street to 7734 Morley. Escobar then drove a vehicle from the 7734 Morley residence back to the 7723 Morley driveway. A few minutes later, Mondragon and an infant exited the residence at 7723 Morley, entered the vehicle and Escobar drove off. A police car stopped the vehicle, and after making a consensual search, they found no narcotics. The officers detained Escobar and Mondragon until they were able to execute the search warrant.

 As the judge was unavailable, it took Sergeant Brown almost two hours to obtain the search warrant. Because of the delay and the chance that appellant would become suspicious, the decision was made to go ahead and detain appellant. At that time, Special Agent Keith Jones retrieved the cocaine sample from Montalvo=s vehicle, which he eventually turned over to Dodds. Soon after appellant was detained, Sergeant Brown informed Dodds the search warrant had been obtained. At that point, the officers executed the search warrant at 7723 Morley. The officers found Alvarado in the living room of the house and two kilograms of cocaine in a shopping bag under a bed in one of the bedrooms. Montalvo was brought back to the 7723 Morley residence where he identified Mondragon, but stated he did not know and had not seen Escobar. Charges were accepted against appellant and Mondragon. The others detained during the investigation were released.

The cocaine found at the 7723 Morley residence and in Montalvo=s vehicle were entered into evidence as State=s Exhibits 4 and 20, respectively. Pauline Orlando, forensic chemist with the Drug Enforcement Administration, South Central Laboratory, testified State=s Exhibits 4 and 20 each contained a controlled substance, specifically cocaine. Orlando also testified State=s Exhibit 4 weighed 1,947 grams while State=s Exhibit 20 weighed less than one gram. Finally, Orlando testified State=s Exhibits 4 and 20 had a purity of eighty-five percent. Dodds testified the cocaine was packaged for wholesale delivery, that it could be diluted three or more times, and it had a street value between $13,500 and $17,000.

Appellant was charged by indictment with the felony offense of knowing possession with intent to deliver a controlled substance, namely, cocaine, weighing at least 400 grams by aggregate weight, including any adulterants and dilutants, enhanced with two prior felony convictions. Appellant entered a plea of Anot guilty.@ The jury was instructed on the law of parties. Tex. Pen. Code Ann. '' 7.01(a), 7.02(a)(2) (Vernon 2003).^[1] The jury found appellant guilty as charged. Appellant entered a plea of true to each of the enhancement paragraphs. The trial court found the allegations in both enhancement paragraphs true and sentenced appellant to twenty-five years= confinement in the Institutional Division of the Texas Department of Corrections. This appeal followed.

Discussion

I.        Is the Evidence Sufficient to Convict Appellant?

In his first issue, appellant argues the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues the evidence is insufficient as there was no proof appellant ever directly possessed the cocaine. In addition, appellant asserts he could not have been found guilty as a party since the jury acquitted appellant=s co-defendant. We disagree.

A.      Legal Sufficiency Standard of Review

When reviewing a challenge to legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2788B89 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App.  2000). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). This standard gives full play to the responsibility of the trier of fact to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

B.      The Evidence Is Legally Sufficient to Convict Appellant

The principle is well established that when the jury returns a general verdict and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld. Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992). In this case, the trial court instructed the jury on the law of parties. The jury returned a general verdict finding the appellant guilty of possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams, including any adulterants or dilutants, as charged in the indictment.

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Pen. Code Ann. ' 7.01(a). Each party to an offense may be charged with commission of the offense. Tex. Pen. Code Ann. ' 7.01(b) (Vernon 2003). Evidence is legally sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. Id. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense. Id.  In addition, participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). It is not necessary that every fact point directly and independently to the defendant=s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

Appellant claims the evidence is legally insufficient to establish possession. APossession@ means actual care, custody, control, or management. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2005). The evidence reflects that once appellant and Montalvo were inside the 7723 Morley residence, Mondragon went into another room and returned with a bag containing two kilograms of cocaine. Mondragon opened both kilograms to show Montalvo the contents were the same and cut into one of the kilograms of cocaine and gave Montalvo a sample. In addition, the evidence establishes that: (1) appellant initially told Montalvo to contact him if he needed any cocaine; (2) once Montalvo contacted appellant about buying cocaine, appellant negotiated with Montalvo for delivery of two kilograms of cocaine priced at $16,300 per kilogram; (3) appellant indicated to Montalvo appellant needed to see Mondragon to arrange for the sale of the cocaine; (4) appellant told Montalvo he had made the contact and arranged the deal with a reluctant Mondragon; (5) appellant directed and accompanied Montalvo to Mondragon=s residence where the cocaine was located; (6) appellant was present when Mondragon brought out for inspection the two kilograms of cocaine and gave Montalvo a sample to take to his buyer;  and (7) appellant traveled with Montalvo to a nearby restaurant and waited for two hours with Montalvo for the buyer to bring the money. Therefore, appellant was present when Mondragon possessed the cocaine. In addition, appellant actively solicited, encouraged, directed, aided, and attempted to aid Mondragon in possessing the cocaine for the purpose of selling it.

After viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found beyond a reasonable doubt the elements of the offense, including the requirement that appellant possessed at least four hundred grams of cocaine with the intent to deliver. 

C.      Factual Sufficiency Standard of Review

When evaluating a challenge to the factual sufficiency of the evidence, we review all of the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong the beyond-a-reasonable-doubt standard could not have been met. Prible v. State, 175 S.W.23d 724, 730B31 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct 481, 163 L. Ed.2d 367. In conducting the factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

D.      The Evidence is Factually Sufficient to Convict Appellant

While appellant admits his function was to bring Montalvo together with the seller of the cocaine, appellant asserts the evidence was too weak to prove possession beyond a reasonable doubt.^[2] In his argument, appellant emphasizes he was a guest at the 7723 Morley residence, the lack of any fingerprint evidence connecting him with the cocaine, and Montalvo=s testimony that only Mondragon handled the cocaine. We disagree that the evidence is factually insufficient.

The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151B52 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In addition, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Thus, the jury was entitled to find that Montalvo, a confidential informant with possibly selfish interests and corrupt motives, was telling the truth. Cantelon v. State, 85 S.W.3d 457, 462 (Tex. App.CAustin 2002, no pet.).

We have reviewed the record for evidence supporting the guilty verdict, including the evidence addressing possession of the cocaine with intent to deliver. This evidence, set out in the Factual and Procedural Background section above, when viewed in a neutral light and standing by itself, is not so weak that the verdict is clearly wrong and manifestly unjust. See Prible, 175 S.W.23d at 730B31; Zuniga, 144 S.W.3d at 484B85. In addition, having reviewed the entire record, we cannot say the evidence contrary to the verdict, including the evidence pointed out by appellant, is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. 

E.      The Acquittal of Appellant=s Co-Defendant

Appellant argues the evidence is insufficient as the jury acquitted his co-defendant. Appellant asserts the verdicts are inconsistent and conflicting, and therefore, his conviction should be reversed. In addition, appellant argues section 7.03 of the Texas Penal Code does not control this situation as, in appellant=s view, it only applies when a defendant has been acquitted in a separate trial. We disagree.

Section 7.03 of the Texas Penal Code states:

In a prosecution in which an actor=s criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:

. . . .

(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.

Tex. Penal Code Ann. ' 7.03 (Vernon 2003). Despite appellant=s assertion, there is no language limiting the impact of section 7.03 to cases where the primary actor was tried and acquitted in a separate trial. By its plain language, section 7.03 applies to all prosecutions, including one like appellant=s, where he was tried jointly with Mondragon, and appellant was convicted and Mondragon was acquitted. See Ex parte Evans, 964 S.W.2d 643, 646 (Tex. Crim. App. 1998) (holding when a statute is clear and unambiguous, a reviewing court applies the plain meaning of the statute=s words). Accordingly, the fact Mondragon was acquitted has no impact on appellant=s conviction.

Appellant=s argument rests on the assumption that Mondragon=s acquittal must be of some benefit to him. This is not the case. Inconsistency in a verdict is not a sufficient reason for setting the verdict aside. United States v. Dotterich, 320 U.S. 277, 279, 64 S. Ct. 134, 135 (1943); Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190 (1932). When there are apparently inconsistent verdicts, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the jury=s verdict. Lockett v. State, No. 14-03-00601-CR, 2004 WL 3202864, at *2 (Tex. App.CHouston [14th Dist.]  Nov. 24, 2004, no pet.) (not designated for publication). We already have determined the evidence is legally sufficient to support appellant=s conviction; therefore, appellant=s argument that Mondragon=s acquittal requires reversal of his conviction is without merit.

As the evidence is legally and factually sufficient to support appellant=s conviction, we overrule appellant=s first issue.

II.       Did Independent Evidence Corroborate the Confidential Informant=s Testimony?

In his second issue, appellant argues the evidence is legally insufficient because there is  no evidence corroborating Montalvo=s testimony connecting appellant to the offense. We disagree.

A.      The Corroboration Requirement

The trial court instructed the jury Montalvo was a confidential informant. A defendant may not be convicted of an offense under Chapter 481 of the 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. Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). The language in Article 38.141 is similar to the language found in Texas Code of Criminal Procedure Article 38.14, which requires corroboration of accomplice testimony, and this standard has been adopted by other intermediate courts of appeal in applying Article 38.141. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Brown v. State, 159 S.W.3d 703, 707 (Tex. App.CTexarkana 2004, pet. ref=d), cert. denied, 125 S. Ct. 485 (2005); Torres v. State, 137 S.W.3d 191, 195B96 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 792B93 (Tex. App.CEastland 2003, pet. ref=d); Cantelon, 85 S.W.3d at 459B61. We find the case law interpreting Article 38.14 persuasive and determine that it should be applied to Article 38.141.^[3]

The Court of Criminal Appeals, in interpreting Article 38.14, has held it is not necessary that the corroborating evidence directly connect the defendant to the crime or it be sufficient by itself to establish guilt; the corroborating evidence need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462. The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff, 939 S.W.2d at 612.

The covert witness rule, Article 38.141, also requires there be some other evidence, which tends to connect the defendant to the commission of the offense alleged in the indictment. Brown, 159 S.W.3d at 707B08; Dennis v. State, 151 S.W.3d 745, 749 (Tex. App.CAmarillo 2004 pet. ref=d); Torres, 137 S.W.3d at 196. Even apparently insignificant incriminating circumstances may sometimes provide sufficient corroboration. Brown, 159 S.W.3d at 708. Cumulative evidence of suspicious circumstances can be sufficient evidence  that tends to connect a defendant to the alleged offense, even if none of the circumstances would be sufficient individually. Id. In determining whether there is other evidence that tends to connect the defendant with the offense, a reviewing court must eliminate all covert witness testimony and determine whether the remaining inculpatory facts and circumstances tend to connect the defendant with the offense. Brown, 159 S.W.3d at 708; Dennis, 151 S.W.3d at 749; Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 461.

B.      The Corroborating Evidence

  Other evidence, independent of Montalvo=s testimony, tends to connect appellant with possession of the cocaine. Appellant was in Montalvo=s company before, during, and after the offense. Officers conducted surveillance of appellant and observed him meet Montalvo at Home Depot at the designated time and place. Officers also observed appellant in the company of Montalvo as they met at Pep Boys at the designated time and place, traveled to two convenience stores and then to the 7723 Morley residence. The officers also observed appellant and Montalvo enter the 7723 Morley residence together and exit together after spending only a few minutes inside. Finally, officers observed appellant and Montalvo travel together to a restaurant and wait for more than two hours. Evidence that a defendant was present in the company of the confidential informant before, during, and after the commission of an offense, coupled with other suspicious circumstances, may tend to connect the defendant to the offense. Torres, 137 S.W.3d at 196. In addition, evidence the defendant was at or near the scene of a crime at or near the time of its commission, coupled with other suspicious circumstances, may be sufficient to tend to connect the defendant to the offense. Brown, 159 S.W.3d at 708.

Officers recovered two kilograms of cocaine from 7723 Morley, which was consistent with the quantity of cocaine for which appellant and Montalvo had negotiated, was consistent with the quantity of cocaine Mondragon was to deliver, was consistent with the quantity Montalvo testified Mondragon showed him inside the 7723 Morley residence, was consistent in purity with the cocaine sample Mondragon delivered to Montalvo, which officers recovered from Montalvo=s vehicle.

Before Montalvo met with appellant on the morning of the offense, officers searched Montalvo and his vehicle and determined there was no cocaine inside the vehicle or on Montalvo=s person. After the offense, officers found a small quantity of cocaine inside Montalvo=s vehicle, which was consistent with Montalvo=s testimony appellant and Mondragon delivered a small sample of cocaine to Montalvo while he and appellant were inside the 7723 Morley residence. See Dennis, 151 S.W.3d at 749 (officer searched informant and informant=s vehicle before the offense and found no contraband and informant delivered cocaine to the officer upon returning from transaction); Jefferson, 99 S.W.3d at 792 (officer searched informant before going into house and found no contraband and informant delivered cocaine to officer upon returning from house).^[4]

The cumulative effect of the evidence, independent of Montalvo=s testimony, tends to connect appellant to the charged offense and is sufficient to corroborate Montalvo=s testimony as required by article 38.141. See Tex. Code Crim. Proc. Ann. art. 38.141. Accordingly, we overrule appellant=s second issue.

Conclusion

Having overruled both of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 17, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]   Texas Penal Code section 7.01(a) states: AA person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.@ Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003).

Texas Penal Code section 7.02(a)(2) states: AA person is criminally responsible for an offense committed by the conduct of another if: . . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.@ Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).

^[2]  In appellant=s brief, there is a section wherein appellant affirmatively states he is relying only on the second method in which the evidence may be factually insufficient. However, this statement is found in  a section of the brief addressing whether appellant should have anticipated a murder in the course of a robbery. As there are no accusations of murder or robbery in this case, we will assume this section was included in appellant=s brief in error.

^[3]  Appellant argues the corroborating evidence is legally insufficient. As the corroboration of covert witness testimony is a statutorily imposed requirement rather than one mandated by either the United States or Texas constitutions, legal and factual sufficiency standards of review are not applicable to a review of covert witness testimony under Article 38.141. Brown v. State, 159 S.W.3d 703, 707 (Tex. App.CTexarkana 2004, pet. ref=d), cert. denied, 125 S. Ct. 485 (2005) (citing Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999)) (addressing the accomplice witness testimony corroboration statute); Torres v. State, 137 S.W.3d 191, 195B96 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.CAustin 2002, no pet.).

^[4]  The State argues audio tapes made by Montalvo contained the voices of Montalvo and appellant discussing arrangements for the transaction and therefore served as additional corroborating evidence. However, appellant did not testify during the trial, and Special Agent Dodds testified his knowledge the voice on the tapes in addition to Montalvo=s was appellant=s, came exclusively from Montalvo. Therefore, the tapes and the transcripts of the tapes must be disregarded for this analysis. Brown, 159 S.W.3d at 708; Dennis, 151 S.W.3d at 749; Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 461.