Gerald Lee McCall v. State

• Court: Court of Appeals of Texas
• Decided: June 17, 1999
• Docket: 03-98-00431-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-98-00431-CR Gerald Lee McCall, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR96-011, HONORABLE VIRGIL MULANAX, JUDGE PRESIDING

A jury found appellant Gerald Lee McCall guilty of delivery of more than four but less than two hundred grams of methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(d) (West Supp. 1999). The trial court assessed punishment at ten years confinement, probated for ten years, and a $5,000 fine. On appeal, McCall challenges the legal sufficiency of the evidence to support the conviction. We will affirm.

BACKGROUND

On October 27, 1995, appellant's girlfriend, Debra Welch, was arrested for delivering methamphetamine to an undercover police officer. The delivery was arranged by a police informant. At the time of Welch's arrest, three men regularly resided with her at her apartment: appellant, Gary "Bubba" McCutchen, and Norman Beeson.

Soon after Welch's arrest, a search incident to a warrant revealed a substantial amount of methamphetamine-related paraphernalia in the apartment. Several months later, police arrested appellant and charged him with delivery of the methamphetamine for which Welch was arrested.

At trial, the State called the informant, who testified that appellant and Welch approached him and arranged a sale of methamphetamine. The informant stated that at the meeting appellant attempted to persuade him to buy methamphetamine from appellant and Welch, rather than McCutchen and Beeson, because appellant was a more trustworthy and experienced methamphetamine cook. According to the informant, appellant boasted about the skill with which he manufactured methamphetamine, and demonstrated the process he used to produce the drug with equipment later recovered from the apartment. The informant testified that the methamphetamine laboratory in the apartment contained equipment used to filter out odors produced by the manufacture of methamphetamine.

Welch, also testifying for the State, claimed that she was unaware of the source of the methamphetamine that she delivered to the undercover officer. Welch testified that she retrieved the drugs from the apartment after McCutchen informed her of their location. Welch testified that she assumed that the methamphetamine was not supplied by appellant, as he had not been in her apartment for several days prior to the delivery. Welch also testified that appellant invited McCutchen and Beeson to stay at the apartment, and that they stayed there at appellant's pleasure.

Both appellant and Welch denied ever meeting with the informant. Appellant also testified that he never manufactured methamphetamine and claimed that he was unaware of the presence of methamphetamine-production equipment in Welch's apartment. Appellant denied that Welch's apartment was his principal place of residence, although he admitted to spending two or three nights per week at the apartment for a period of several months.

DISCUSSION

At trial, the jury was instructed on criminal liability for the delivery of methamphetamine, both as a principal and under the law of parties. Appellant contends that the trial court erred because the evidence was legally insufficient to support a guilty verdict based on the law of parties.

In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to the witnesses' testimony, and is free to accept or reject all or any part of a witness's testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury may draw reasonable inferences and make reasonable deductions from the evidence. See Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd). Any inconsistencies are resolved in favor of the verdict. See Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). It is the duty of this Court to determine if the explicit and implicit findings by the trier of fact are rational under legal standards to support appellant's conviction. See Adelman, 828 S.W.2d at 422. It is not necessary that every fact point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).

It is undisputed that appellant did not personally deliver methamphetamine to the undercover officer; therefore, in order to establish appellant's guilt, the pertinent issue is whether a rational jury could find appellant guilty for the delivery of methamphetamine under the law of parties. In light of all of the evidence and the jury's verdict, we conclude that a rational jury could have found each essential element of criminal responsibility for the conduct of another beyond a reasonable doubt. See Tex. Penal Code Ann. § 7.02(a)(2) (West 1994).

Under the law of parties, the State must first prove the guilt of the primary actor in order to prove the defendant's guilt. See Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993). The State met this burden when Welch pled guilty to the offense of delivery of methamphetamine. See Garza v. State, 687 S.W.2d 325, 328 (Tex. Crim. App. 1985); see also Tex. Health & Safety Code Ann. §§ 481.102(6), .112(d) (West Supp. 1999). Welch also admitted her guilt at appellant's trial.

Next, the State must prove that appellant acted to promote or assist in the delivery of methamphetamine. See Tex. Penal Code Ann. § 7.02(a)(2) (West 1994). When an accused promotes or assists in the commission of an offense, he shares the criminal responsibility. See Haddad v. State, 860 S.W.2d 947, 950 (Tex. App.--Dallas 1993, pet. ref'd). Under the law of parties, circumstantial evidence alone may be sufficient to establish that appellant was a party to the offense. See Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). Additionally, it is not necessary that appellant be physically present at the crime scene to be criminally responsible for Welch's behavior. See Morrison v. State, 608 S.W.2d 233, 234-35 (Tex. Crim. App. 1980).

To establish liability as a party, the State must prove, in addition to the illegal conduct by the primary actor, that appellant harbored the specific intent to promote or assist in the delivery of methamphetamine. See Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App. 1995). Alternatively, the State may prove that appellant knew he was assisting in the delivery of methamphetamine. See Amaya v. State, 733 S.W.2d 168, 174-75 (Tex. Crim. App. 1996). The State is responsible for proving that appellant encouraged, assisted, or agreed to aid Welch in delivering methamphetamine either before or contemporaneous to the delivery. See Miranda v. State, 813 S.W.2d 724, 732 (Tex. App.--San Antonio 1991, pet. ref'd).

Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could find that appellant acted with intent and knowledge to promote or assist Welch in the delivery of methamphetamine. While appellant testified that he had neither intent nor knowledge of the delivery, the jury was not obligated to accept appellant's version of the events. See Adelman, 828 S.W.2d at 421. Rather, the jury was free to accept the informant's testimony. See id. According to the informant's testimony, appellant displayed both intent and knowledge when appellant and Welch met with the informant and encouraged him to deal with them, rather than with McCutchen and Beeson. This meeting occurred days before Welch's delivery of methamphetamine to the undercover officer, and thus represents a prior agreement. See Miranda, 813 S.W.2d at 732. The informant testified that appellant was upset at McCutchen and Beeson for using appellant's equipment to manufacture methamphetamine for a sale from which they excluded appellant.

Based on the informant's testimony, appellant further manifested his intent and knowledge by demonstrating and describing his methamphetamine manufacturing technique and process for the informant. While appellant denied at trial any knowledge of methamphetamine-production equipment, both equipment and chemicals were found in a linen closet in the apartment. The frequency with which appellant resided at Welch's apartment and appellant's fingerprints on a glass beaker found in the closet further connect appellant with the equipment. Although appellant and Welch testified that the glass cylinder was used for making coffee, the cylinder was found wrapped in paper in the linen closet with other equipment and methamphetamine-production paraphernalia, and next to a bag of a white powdered substance ⁽¹⁾ and a vial of red phosphorous. Evidence technician Wayne Ellington testified for the State that red phosphorous is commonly used in the manufacture of methamphetamine.

Additionally, while both appellant and Ms. Welch testified that they had no knowledge of the methamphetamine-related paraphernalia, equipment and chemicals were found in multiple other locations throughout the apartment. Various chemicals used in methamphetamine production, as well as a plastic container holding methamphetamine, were found in the kitchen cabinets. In the bedroom, red phosphorous was found between the mattress and box springs and methamphetamine was found under a pillow.

CONCLUSION

Considering the evidence as a whole, we conclude that a rational jury could have determined that the State proved beyond a reasonable doubt the essential element of appellant's culpability, the common design to deliver methamphetamine. See Brooks v. State, 580 S.W.2d 825, 831 (Tex. Crim. App. 1979). Because we hold that appellant acted with intent and knowledge to promote or assist Welch's delivery of methamphetamine to the undercover officer, we need not determine the source of the drugs. See Francis v. State, 909 S.W.2d 158, 162 (Tex. App.--Houston [14th Dist.] 1995, no pet.) (it is sufficient to show defendant acted with intent to promote or assist in other individual's actual transfer of narcotics to undercover officer to establish criminal responsibility under the law of parties).

The point of error is overruled and the judgment of the trial court is affirmed.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: June 17, 1999

Do Not Publish

1.

The white powdered substance was too small to test.

delivering methamphetamine either before or contemporaneous to the delivery. See Miranda v. State, 813 S.W.2d 724, 732 (Tex. App.--San Antonio 1991, pet. ref'd).

Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could find that appellant acted with intent and knowledge to promote or assist Welch in the delivery of methamphetamine. While appellant testified that he had neither intent nor knowledge of the delivery, the jury was not obligated to accept appellant's version of the events. See Adelman, 828 S.W.2d at 421. Rather, the jury was free to accept the informant's testimony. See id. According to the informant's testimony, appellant displayed both intent and knowledge when appellant and Welch met with the informant and encouraged him to deal with them, rather than with McCutchen and Beeson. This meeting occurred days before Welch's delivery of methamphetamine to the undercover officer, and thus represents a