                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________
                               NO. 09-15-00317-CR
                              _________________

                   TROY JAMARKUS GARNER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 258th District Court
                             Polk County, Texas
                           Trial Cause No. 23184
________________________________________________________________________

                          MEMORANDUM OPINION

      Troy Jamarkus Garner appeals his conviction for engaging in organized

criminal activity. See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2016).1 In two

issues, Garner challenges the sufficiency of the evidence to support the conviction

and contends that the trial court erred in admitting evidence of extraneous bad acts.




      1
         Because the 2015 amendment to section 71.02 does not affect the outcome
of this appeal, we cite to the current version.
                                            1
                                   I. Background

      The indictment in this case alleged that Garner

      did then and there with intent to establish, maintain, and participate in
      a combination and in the profits of a combination, said combination
      consisting of Vikki Nixon, Troy Jamarkus Garner, and Shelby Waldrep,
      agree to commit the offense of Delivery of a Controlled Substance
      Penalty Group One in an amount of one gram or more but less than four
      grams including any adulterants or dilutants to-wit: By Shelby Waldrep
      committing the overt act of bringing a controlled substance to the Polk
      County Jail[.]

      The State produced telephone conversations that were recorded while Garner

was incarcerated in the Polk County Jail. In the conversations, Garner can be heard

arranging to have Waldrep obtain methamphetamine from Nixon and smuggle it to

him inside the jail. In the course of the conversations, Garner states that his business

with Nixon is good, thanks Nixon for everything she does, and indicates that he will

make things happen when he gets out of jail on bond.

      Waldrep obtained methamphetamine from Nixon, placed it inside a container

of over-the-counter medicinal cream, and delivered it to the jail for delivery to

Garner. The contraband was discovered by a jailer upon inspection of the cream. An

officer confronted Waldrep, who eventually confessed and implicated Garner and

Nixon. The officer’s investigation into the jail telephone recordings resulted in the

discovery of the telephone conversations Garner had with Nixon and Waldrep four

or five hours before Waldrep smuggled the drugs into the jail. Execution of a search
                                        2
warrant on Nixon’s residence a week or two later resulted in the seizure of

methamphetamine.

      In Garner’s trial, Waldrep testified that she pleaded guilty to engaging in

organized criminal activity in connection with the incident.2 Waldrep testified that

she and Garner frequently used methamphetamine together. Waldrep stated that she

only obtained methamphetamine from Nixon one time, when Nixon gave her

methamphetamine to deliver to Garner in the jail.

      A narcotics officer testified that as part of an investigation of drug dealing by

Garner and Garner’s brother, an informant purchased $140 worth of

methamphetamine from Garner in a controlled buy, approximately six weeks before

the incident at the jail. Neither Nixon nor Waldrep were involved in the controlled

buy. The informant testified that she had purchased drugs from Garner on at least

one other occasion before the date of the controlled buy.

      Another officer testified that he arrested Garner for possessing drug

paraphernalia one month before the jail incident occurred. A search of Garner’s

vehicle and the surrounding area yielded a pipe, a set of scales disguised as a

cigarette pack, $1001 in currency, and methamphetamine. Neither Nixon nor

Waldrep were with Garner at the time.


      2
          No record of any conviction was introduced into the record before us.
                                          3
      The jury found Garner guilty of engaging in organized criminal activity as

charged in the indictment. The trial court sentenced Garner to ten years of

imprisonment.

                           II. Sufficiency of the Evidence

      When evaluating the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the prosecution and determine whether 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, 318–19 (1979); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). We “must give deference to ‘the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.’” Hooper, 214

S.W.3d at 13 (quoting Jackson, 443 U.S. at 319). “The jury is the sole judge of

credibility and weight to be attached to the testimony of witnesses.” Merritt v. State,

368 S.W.3d 516, 525 (Tex. Crim. App. 2012). In this role, the jury may “choose to

believe all, some, or none of the testimony presented by the parties.” Chambers v.

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

      Waldrep was an accomplice as a matter of law; therefore, Garner’s conviction

cannot rest on Waldrep’s testimony absent corroborating evidence tending to

connect Garner to the offense. See Tex. Code Crim. Proc. Ann. Art. 38.14 (West

                                           4
2005); Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). The test for

weighing the sufficiency of corroborating evidence is to eliminate from

consideration the accomplice’s testimony, and then examine the remaining

testimony and evidence to determine if there is evidence that tends to connect the

defendant with the commission of the offense. Munoz v. State, 853 S.W.2d 558, 559

(Tex. Crim. App. 1993).

      To establish the commission of the crime of engaging in organized criminal

activity, “the State must prove more than that the appellant committed or conspired

to commit one of the enumerated offenses with two or more other people.” Nguyen

v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). “[T]he State must prove that

the appellant intended to ‘establish, maintain, or participate in’ a group of three or

more, in which the members intend to work together in a continuing course of

criminal activities.” Id. The acts used to prove intent need not be criminal offenses.

Id.

      Garner argues the evidence is insufficient because the State proved only an

agreement to jointly commit a single crime. There is evidence from which the jury

could infer that Waldrep intended to participate in future crimes with Garner and

Nixon because Waldrep testified that she pleaded guilty to engaging in organized

criminal activity in connection with her delivery of methamphetamine to the jail.

                                          5
The issue in this case, however, is whether the jury could infer that Garner intended

to collaborate in committing future crimes with both Nixon and Waldrep.

      Proof of coordinated action can support an inference that the parties agreed to

collaborate in carrying on criminal activities. See, e.g., Dowdle v. State, 11 S.W.3d

233, 236–37 (Tex. Crim. App. 2000). The jail recordings and the evidence that

methamphetamine was seized in a search of Nixon’s home provide evidence from

which the jury could reasonably infer that Garner and Nixon had a pre-existing and

ongoing wholesaler-retailer methamphetamine distribution relationship. Garner

recruited Waldrep to smuggle methamphetamine into the jail that Nixon provided to

Waldrep for delivery to Garner. From her guilty plea to engaging in organized

criminal activity in connection with this same occurrence, the jury could reasonably

infer that Waldrep intended to join with Nixon and Garner in the commission of

future crimes. The jury could reasonably infer Garner’s intent to establish a

combination through testimony that established Garner’s previous drug dealing,

from Garner’s telephone conversations in which he arranged to have Nixon give

methamphetamine to Waldrep and for Waldrep to smuggle the methamphetamine

into the jail, and from Garner’s statements that he would make things happen upon

his release from jail and business was good between them. The jury could rationally

find Garner guilty of engaging in organized criminal activity because the defendant’s

                                         6
intent to establish a combination is established on these facts. See Nguyen, 1 S.W.3d

at 697–98. We overrule issue one.

                             III. Extraneous Offenses

      In issue two, Garner contends the trial court erred by admitting evidence that

Garner committed extraneous offenses. Garner does not challenge the relevance of

this evidence, but he argues that the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Relevant

evidence may be excluded if its probative value is substantially outweighed by a

danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.” Id. Balancing Rule 403 “includes,

but is not limited to the following factors: (1) the probative value of the evidence;

(2) the potential to impress the jury in some irrational, yet indelible, way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the evidence.”

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). “Rule 403 favors

the admission of relevant evidence and carries a presumption that relevant evidence

will be more probative than prejudicial.” Shuffield v. State, 189 S.W.3d 782, 787

(Tex. Crim. App. 2006).

      Of the record cites mentioned in his appellate brief, we find a single preserved

Rule 403 objection. Over Garner’s Rule 403 objection, a detective with the Polk

                                          7
County Sheriff’s Department was permitted to testify that Garner and his brother

have reputations as drug dealers. Additionally, Garner made a Rule 403 objection at

trial to the admission of a September 21, 2013 video recording of a drug purchase

between Garner and an informant.

      Garner argues the testimony concerning drug transactions that did not involve

Nixon and Waldrep lacked probative value concerning the existence of a

combination and showed Garner in a “bad light.” He argues the jury would be

irrationally motivated to convict him for something because he engaged in two

additional drug transactions but engaging in organized criminal activity was the sole

option available to convict him. The State relied, at least in part, on the extraneous

offense evidence to establish Garner’s intent to establish a combination with Nixon

and Waldrep. The extraneous offenses were probative of whether Garner was a drug

dealer, as opposed to a mere consumer of methamphetamine. Under the Rule 403

balancing test, the trial court could have reasonably concluded that revealing Garner

was a drug dealer was probative of his intent to establish a combination, and any

prejudice was not unfair because the prejudicial effect arose from its probative value

and not some unrelated matter. See Martin v. State, 144 S.W.3d 29, 33 (Tex. App.—

Beaumont 2004), aff’d, 173 S.W.3d 463 (Tex. Crim. App. 2005); Saxer v. State, 115

S.W.3d 765, 776 (Tex. App.—Beaumont 2003, pet. ref’d). Because the trial court’s

                                          8
ruling does not lie outside the zone of reasonable disagreement about its

admissibility, we overrule issue two.

                                   IV. Holding

      The judgment of the trial court is affirmed.

      AFFIRMED.



                                             ______________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on November 18, 2016
Opinion Delivered August 2, 2017
Do not publish

Before McKeithen, C.J., Kreger, and Johnson, JJ.




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