Preston Gerard Walker v. State

• Court: Court of Appeals of Texas
• Decided: August 15, 2014
• Docket: 07-12-00416-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00416-CR

PRESTON GERARD WALKER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 63,870-D, Honorable Don R. Emerson, Presiding

August 15, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant Preston Gerard Walker was convicted of delivery of a controlled

substance, cocaine, in an amount of four grams or more but less than 200 grams, within

1000 feet of a school.1 After a jury found appellant guilty, it assessed punishment,

1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) & 481.112(d) (West 2010) (delivery of cocaine in an amount of four grams or more but less than 200 grams is a first-degree felony); TEX. PENAL CODE ANN. § 12.32 (West 2011) (a first-degree felony is punishable by imprisonment for five to 99 years, or life, and a maximum fine of $10,000); TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2014) (increasing minimum term of imprisonment to fifteen years under some circumstances); TEX. HEALTH & enhanced by one prior felony conviction, at forty years’ confinement in prison and a fine

of $19,999. Through two issues appellant challenges the sufficiency of evidence

corroborating the testimony of a confidential informant and the judgment’s requirement

that he repay court-appointed attorney’s fees as a cost of court. We will modify the trial

court’s judgment to delete any requirement that he repay court-appointed attorney’s

fees and, as modified, affirm the judgment.

Background

During May 2011, Amarillo Police Department narcotics officers planned to use a

confidential informant to purchase narcotics from an individual, P.Z., identified at trial as

appellant. The informant contacted P.Z. by telephone to arrange the transaction.

To prepare the informant for the transaction, officers searched the informant’s

person and vehicle, gave the informant $200, and provided him a recorder, a wireless

transmitter, and a set of scales. He was then sent to a designated residence. Other

officers were in the vicinity to document the informant’s arrival at the location and record

the transaction.

More than one trip by the informant to the residence was necessary because

appellant was initially not present. After additional telephone calls, the informant

returned to the residence and found appellant. The officers watched the informant from

the site of their meeting until the informant entered the residence. According to the lead

officer, the informant remained inside the residence five to ten minutes.

___________________________ SAFETY CODE ANN. § 481.134(c)(1) (West Supp. 2014) (increasing minimum term of imprisonment by five years and doubling maximum fine if offense committed within 1000 feet of school premises).

2 The informant testified to his involvement in the drug purchase. Besides

appellant, he said he found a male, a female, and a child present at the residence.

Appellant was seated in the kitchen at the table. The informant told appellant he

wanted to buy $200 worth of crack cocaine. Appellant obliged, and delivered the drugs.

The informant then made “small talk” with appellant and the two walked out of the

residence. According to the informant, getting appellant outside the residence was

necessary for the video tape recording. As they talked, according to the informant,

appellant explained how he cut and sold the drugs.

The lead officer testified he watched the informant and appellant walk out of the

residence. The two stood by the informant’s vehicle and talked briefly. The officer

testified he heard the two converse, by means of the wireless transmitter, from his

location “maybe half a block” away. The officer agreed with the prosecutor he heard

“conversation by [appellant] about how he transacted his business.”2 The audio

recording was played for the jury. As it appears in the appellate record, the recording

contains much interference and is difficult to hear, but mention of the terms “20” and

“1.1” can be heard.3 The officer testified to his over-twenty-year experience

investigating narcotics offenses, and agreed that conversation regarding “1.1 and

2 Although not essential to our decision, we note also that earlier the officer testified the informant and appellant “talked about some drug dealing activity.” Appellant then objected to the statement as hearsay. The trial court sustained the objection but did not issue an instruction to the jury to disregard the answer. It thus remained before the jury. See Smith v. State, No. 14-02-00554-CR, 2003 Tex. App. Lexis 8077, at *10-13 (Tex. App.—Houston [14th Dist.] Sept. 18, 2003, no pet.) (mem. op., not designated for publication). 3 The lead officer testified he had listened to the audio recording, agreed he had “compared it to [his] memory as to what [he] heard that day,” and agreed it fairly and accurately recorded the events.

3 putting it on the scales, and then using the term 20,” in his experience, referred to $20

rocks, and 1.1 grams of cocaine.

According to their testimony, the officers then followed the informant to a

predetermined meeting place. They watched him all along the way and noted that he

made no stops. The officers again searched the informant and his vehicle. The only

controlled substance in his possession was the crack cocaine he said he purchased at

the residence.

During trial, a Department of Public Safety chemist testified that the contraband

in question “contained 4.8 grams of a substance that contains cocaine.” Other evidence

showed the residence was within 1000 feet of a school campus. Appellant was

convicted and sentenced as noted. This appeal followed.

Analysis

Through his first issue, appellant contends that the evidence corroborating the

testimony of the confidential informant was insufficient to support his conviction.

In pertinent part, article 38.141 of the Code of Criminal Procedure provides:

(a) A defendant may not be convicted of an offense under Chapter 481, 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.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

4 TEX. CODE CRIM. PROC. ANN. art. 38.141(a), (b) (West 2005). Without dispute, the

informant was not a licensed peace officer or a special investigator.

When we evaluate the sufficiency of the evidence for corroboration under article

38.141, we apply the standard used for corroboration under the accomplice-witness rule

of article 38.14. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).

Applying that standard, we “eliminate the accomplice testimony from consideration and

then examine the remaining portions of the record to see if there is any evidence that

tends to connect the accused with the commission of the crime.” Solomon v. State, 49

S.W.3d 356, 361 (Tex. Crim. App. 2001).

A challenge to the sufficiency of corroborating evidence is not the same as a

challenge to the sufficiency of the evidence to support the verdict as a whole. Cathey v.

State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999) (accomplice-witness rule is

legislatively-created sufficiency review and not derived from federal or state

constitutional principles defining sufficiency of evidence standards). The corroborating

evidence need not directly connect the defendant to the crime or be sufficient by itself to

establish guilt. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Vasquez v. State,

67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Rather, evidence offered in corroboration

need only tend to connect the defendant to the offense. Smith v. State, 211 S.W.3d

476, 478 (Tex. App.—Amarillo 2006, no pet.). The phrase “tends to connect” has the

ordinary dictionary definition, “to serve, contribute or conduce in some degree or

way . . . to have a more or less direct bearing or effect.” Holladay v. State, 709 S.W.2d

194, 198 (Tex. Crim. App. 1986) (quoting Boone v. State, 90 Tex. Crim. 374, 235 S.W.

580, 584 (Tex. Crim. App. 1922)). Although the mere presence of an accused in the

5 company of the accomplice before, during, and after the commission of the offense,

standing alone, is insufficient to corroborate accomplice testimony, evidence of such

presence, along with proof of other suspicious circumstances, may tend to connect the

accused to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).

We review the corroborating evidence in the light most favorable to the verdict. Smith,

211 S.W.3d at 478. The tends-to-connect standard does not present a high threshold.

Cantelon v. State, 85 S.W.3d 457, 460-61 (Tex. App.—Austin 2002, no pet.).

When viewed in the light most favorable to the verdict, but without the informant’s

testimony, there is evidence the informant walked alone into the residence without

drugs in his possession, the informant walked out of the residence in the company of

appellant a few minutes later, the two talked briefly near the informant’s vehicle, during

their conversation the two discussed subjects another witness tied to drug transactions,

and the informant left the residence watched by officers and then produced the cocaine.

This corroborating evidence tends to connect appellant to the offense of delivery of the

cocaine.

The authorities on which appellant relies have features distinguishing them from

the case at hand. In King v. State, 334 S.W.3d 818 (Tex. App.—Beaumont 2011, pet.

refused), identification of the defendant as perpetrator of the offense was critical. Unlike

here, no eyewitness, aside from the informant, connected the defendant to the offense.

In Taylor v. State, 328 S.W.3d 574, 576, 578, 579 (Tex. App.—Eastland 2010, pet.

refused), no officer watched an informant go to the house identified for the purchase of

cocaine. Consequently, no officer saw the informant enter or leave the house. No

evidence other than the testimony of the informant connected the defendant to the

6 house where the informant said he bought the cocaine. Finally, while there was an

audio recording no one except the informant identified the defendant’s voice on the

recording. See James v. State, No. 11-10-00148-CR, 2012 Tex. App. Lexis 3914, at

11-12 (Tex. App.—Eastland May 17, 2012, no pet.) (mem. op., not designated for

publication) (distinguishing Taylor).

Finding adequate corroborating evidence in the record, we accordingly find the

evidence sufficient to support appellant’s conviction. Appellant’s first issue is overruled.

By his second issue, appellant challenges the requirement of the judgment that

he repay court costs which include court-appointed attorney’s fees. In both the written

judgment signed September 7, 2012, and a judgment nunc pro tunc signed October 2,

2012, beneath the heading, “court costs” appears the statement, “As per attached Bill of

Cost.” Both instruments order appellant to pay court costs.

In the clerk’s record, immediately following the judgment appears a bill of costs

dated September 4, 2012. It does not contain an entry specifying an amount of

attorney’s fees. Immediately following, however, is an “amended” bill of costs dated

September 10. It contains an entry in the amount of $1,999 correlating to the

explanatory notation, “Attorney Fee(s)-Original Plea Agreement.” The same

explanation and corresponding amount of attorney’s fees appears in an October 3, 2012

bill of costs located immediately after the judgment nunc pro tunc.

A trial court has authority to order reimbursement of the fees of court-appointed

counsel if the court determines that a defendant has financial resources enabling him to

offset, in part or in whole, the costs of the legal services provided. TEX. CODE CRIM.

7 PROC. ANN. art. 26.05(g) (West Supp. 2014); Mayer v. State, 274 S.W.3d 898, 901 (Tex.

App.—Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010). But “[a] defendant

who is determined by the court to be indigent is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s

financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2014).

“[T]he defendant’s financial resources and ability to pay are explicit critical elements in

the trial court’s determination of the propriety of ordering reimbursement of costs and

fees.” Mayer, 309 S.W.3d at 556. Accordingly, the record must supply a factual basis

supporting a determination the defendant is capable of repaying the attorney’s fees

levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (per

curiam).

Here, the record does not contain evidence of an “original plea agreement”

obligating appellant to repay court-appointed attorney’s fees.4 Nor is there evidence the

trial court reconsidered its pre-trial determination of indigency, found a material change

in appellant’s financial circumstances, or considered his ability to offset the cost of legal

services provided. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) and art. 26.05(g) (West

Supp. 2014). Indeed, the trial court appointed appellate counsel for appellant because

of appellant’s indigence and for the same reason ordered a free reporter’s record on

appeal.

We agree with appellant, there is no evidence he is able to repay attorney’s fees

expended on his behalf in the underlying case. Accordingly, we modify the trial court’s

4 The clerk’s record also contains an “attorney fee voucher” indicating the trial court approved payment to appellant’s trial counsel of $1,999 for representing appellant at trial.

8 written judgment and judgment nunc pro tunc by inserting an order at page two,

beneath the heading “Furthermore, the following special findings or orders apply”: “As

used herein, the term ‘court costs’ does not include court-appointed attorney’s fees.”

Conclusion

We modify the trial court’s judgment as stated and affirm the judgment as

modified.

James T. Campbell Justice

Do not publish.