                                      NO. 07-10-0231-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                             PANEL E

                                     SEPTEMBER 27, 2011




                              ISAAC RODRIGUEZ, APPELLANT

                                                 v.

                            THE STATE OF TEXAS, APPELLEE



              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2009-422,779; HONORABLE CECIL PURYEAR, JUDGE



Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1


                                  MEMORANDUM OPINION


       Following a jury trial, Appellant, Isaac Rodriguez, was convicted of the offense of

possession with intent to deliver a controlled substance (cocaine), four grams or more

but less than 200 grams, a first degree felony,2 and sentenced to thirty years. By six

issues, Appellant contests the legal and factual sufficiency of the evidence to support

the findings of "knowing possession of a controlled substance" and "intent to deliver"

1
 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. § 75.002(a)(1) (West 2005).
2
Tex. Health & Safety Code Ann. § 481.112(d) (West 2010).
(issues one, two, five and six), and he contends the trial court erred in not treating the

testimony of the State's key witness as a "covert witness" pursuant to article 38.141 of

the Texas Code of Criminal Procedure (issues three and four). We affirm.


                                      Background


      Appellant and his sister, Sonia Rodriguez, lived together in an apartment located

in Lubbock County. Sonia became suspicious when Appellant engaged in suspicious

activities and started keeping "questionable" friends.    She initiated a search of his

bedroom where she found a paper bag, containing plastic bags, containing a white

powdery substance she suspected as being a controlled substance. After consulting

with her parents, she eventually turned the paper bag and its contents over to law

enforcement. Although the apartment was never searched by law enforcement officials,

the contents of the paper bag were tested and found to consist of 133.9 grams of a

substance containing cocaine. Sonia cooperated with law enforcement by explaining

the circumstances whereby she came into possession of the paper bag and, eventually,

this prosecution ensued.


            Issues One, Two, Five and Six - Sufficiency of the Evidence


      We review challenges to the sufficiency of the evidence under the standards

discussed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

and Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). We refer the parties to

those cases.


      To prove the offense charged, the State had to show that Appellant knowingly

exercised care, custody or control over what he knew to be a controlled substance, and

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that he did so with the intent Ato transfer [the substance], actually or constructively, to

another . . . .@ Tex. Health & Safety Code Ann. '§ 481.002(8), 481.002(38) and

481.112(a) (West 2010). We review challenges to "knowing" possession and "intent to

deliver" by reviewing various factors discussed in Evans v. State, 202 S.W.3d 158, 162

(Tex.Crim.App. 2006) (discussing a non-exclusive list of factors that Texas courts have

recognized as sufficient, either singly or in combination, to establish possession of a

controlled substance); Triplett v. State, 292 S.W.3d 205, 208-09 (Tex.App.--Amarillo

2009, pet. ref'd) (discussing same); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.--

Houston [14th Dist.] 2005, no pet.) (discussing same); and, Williams v. State, 902

S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d) (discussing factors to be

considered in determining intent to deliver), and we refer the parties to those cases.


         Further, the trier of fact is the sole judge of the weight of the evidence and

credibility of the witnesses; Tex. Code Crim. Proc. art. 38.04 (West 1979); Margraves v.

State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not re-evaluate the

weight and credibility determinations made by the fact-finder. Dewberry v. State, 4

S.W.3d 735, 740 (Tex.Crim.App. 1999). Thus, we resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.

2000).


         In addition, each fact need not point directly and independently to the guilt of the

accused, as long as the cumulative effect of all the incriminating facts are sufficient to

support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)

(citing Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987)). Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

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circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214

S.W.3d 9, 13 (Tex.Crim.App. 2007). With that said, we turn to the record before us.


       In this case, Appellant's sister and roommate testified that the controlled

substance in question was found in the bedroom used exclusively by Appellant, in what

he used as his clothes hamper. She also testified that her search of his bedroom was

instigated by her concern over his association with persons of questionable character

and his unusual behavior, including an instance where he received a phone call, left the

apartment to meet someone in the parking lot, and then shortly returned to the

apartment.    Assuming, as we must, that the jury was allowed to draw reasonable

inferences from her direct testimony and that it may have resolved any credibility issue

in favor of that testimony, such evidence, albeit inferential, is sufficient for us to find that

a rational trier of fact could have found the essential elements of the offense charged

beyond a reasonable doubt. Issues one, two, five and six are overruled.


                         Issues Three and Four - Article 38.141


       Appellant contends the State's key witness, Appellant's sister, was a "covert

witness" requiring corroboration pursuant to the provisions of article 38.141 of the Texas

Code of Criminal Procedure. We disagree.


       Article 38.141 provides, in pertinent part, as follows:

       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 special investigator but who is acting covertly on
       behalf of law enforcement or under color of law enforcement unless the
       testimony is corroborated by other evidence tending to connect the
       defendant with the offense committed.

(Emphasis added).
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      Neither the word "covertly" nor the phrase "acting . . . on behalf of law

enforcement or under color of law enforcement" are defined in the statute and we have

not been directed to any case specifically construing either provision. We are, however,

guided by the general principle that when construing a statute, words are to be given

their ordinary meaning unless the statute defines them or they are connected and used

with reference to a particular trade or subject matter or they are used as a term of art.

Tex. Gov=t Code Ann. ' 312.002 (West 2005). In that regard, to act covertly is to act in

a concealed, secretive, or disguised manner, and to act on behalf of someone is to act

as that person's representative or proxy.


      Here, Sonia acted independently. She alone made the decision to investigate

Appellant's activities and to report her findings to her parents.     Together with her

parents, without the assistance or encouragement of law enforcement, she made the

decision to report her findings to the police and to explain the circumstances

surrounding her coming into possession of the paper bag containing 133.9 grams of a

controlled substance. Simply put, Sonia was not a covert witness because she was not

acting on behalf of law enforcement. Issues three and four are overruled.


                                      Conclusion


      Having overruled each of Appellant issues, the trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice
Do not publish.



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