






NUMBER 13-03-420-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



RALPH McAFEE, SR.,	Appellant,


v.

THE STATE OF TEXAS,	Appellee.


On appeal from the 23rd District Court
of Wharton County, Texas.




CONCURRING OPINION
Before the Court En Banc

Concurring Opinion by Justice Castillo


	I agree with the majority that the judgment of the trial court should be affirmed. 
Because I apply a different analysis, I respectfully concur. 
I.  BACKGROUND  
	The offense is possession of cocaine, enhanced; the punishment, eighteen years
imprisonment.  The hypothetically correct jury charge authorizes a conviction on a
principal or party theory. (1)  We may sustain on either theory. (2)  The crux of Ralph
McAfee's appellate argument is that mere presence is not enough to sustain his
conviction. (3) 
 II.  APPLICABLE LAW
	The standard of review is legal sufficiency of the evidence that turns on an
application of the accomplice witness rule and the confidential informant rule.  See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Poindexter v. State, 153 S.W.3d 402,
405-06 (Tex. Crim. App. 2005); Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.
App. 1995).  This determination is made on a case-by-case basis and in light of the
totality of the circumstances.   See Humason v. State, 728 S.W. 2d 363, 367 n.12
(Tex. Crim. App. 1987); Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas
1994, pet. ref'd) (affirmative links are established by a totality of the circumstances
test).  The jury, as trier of facts, is responsible for resolving conflicts in the testimony,
weighing the evidence, and drawing reasonable inferences from basic to ultimate facts. 
See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).  The jury is the
exclusive judge of the credibility of the witnesses and the weight to be given their
testimony.  See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). 
Thus, the jury is free to accept or reject any or all of the evidence presented by either
side.  Id.  When faced with conflicting evidence, we presume the trier of facts resolved
conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex.
Crim. App. 1993). 
	The requirement that accomplice testimony must be "corroborated by other
evidence tending to connect the defendant with the offense committed" is identical
to the requirement that covert witness testimony must be "corroborated by other
evidence tending to connect the defendant with the offense committed."  Tex. Code
Crim. Proc. Ann. arts. 38.14 & 38.141 (Vernon 2005); Jefferson v. State, 99 S.W.3d
790, 793 (Tex. App.-Eastland 2003, pet. ref'd) (citing Hernandez v. State, 939
S.W.2d 173, 178 (Tex. Crim. App. 1997)).  The ultimate consequence of our analysis
is that the defendant must still be affirmatively linked with the contraband he allegedly
possessed.  See Brown, 911 S.W.2d at 748; Poindexter, 153 S.W.3d at 406. 
	Measured against the hypothetically correct jury charge as limited by the
indictment, the essential elements of unlawful possession of a controlled substance
are that McAfee had (1) actual care, control, custody and management over the
contraband, and (2) knowledge that the substance was cocaine.  See Tex. Health &
Safety Code Ann. § 481.115(d) (Vernon 2003); Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997); Poindexter, 153 S.W.3d at 405; Taylor v. State, 106 S.W.3d
827, 830 (Tex. App.-Dallas 2003, no pet.).  Control over the contraband need not be
exclusive and can be jointly exercised by more than one person.  See McGoldrick v.
State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Aldridge v. State, 482 S.W.2d
171, 174 (Tex. Crim. App. 1972); Taylor, 106 S.W.3d at 831.  "[W]hen the accused
is not in exclusive possession of the place where the substance is found, it cannot be
concluded that the accused had knowledge of and control over the contraband unless
there are additional independent facts and circumstances which affirmatively link the
accused to the contraband.  See Poindexter, 153 S.W.3d at 406 (quoting Deshong v.
State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)).  Whether evidence  is direct
or circumstantial, "it must establish, to the requisite level of confidence, that the
accused's connection with the drug was more than just fortuitous.  This is the whole
of the so-called 'affirmative links' rule."  Poindexter, 153 S.W.3d at 406 (quoting
Brown, 911 S.W.2d at 747).  

III.  SUFFICIENCY ANALYSIS
	 McAfee does not raise Fourth Amendment challenges (4) or an entrapment
defense. (5)   Unobjected to at trial and unchallenged on appeal, testimony from three
law enforcement officers demonstrates that McAfee and his vehicle were targets of
a covert operation for possession of contraband.  Law enforcement set up a procedure
whereby a covert agent would meet with McAfee at a predetermined location for the
sole purpose of, and ostensibly to transact, a cocaine buy.  Law enforcement
instructed the covert agent not to buy.  Although unrecorded, the planned meeting
between the covert agent and McAfee occurred while under law enforcement
surveillance.  The detective observed McAfee arrive, in what was commonly and
already known to be his vehicle, at the planned location and communicate with the
covert agent.  As part of the covert operation, assisting officers were to stop
McAfee's vehicle, on independent probable cause, upon McAfee's leaving the
controlled meeting. (6)  In furtherance of the operation in place, assisting officers were
informed that McAfee and his vehicle were targets in a covert operation for possession
of contraband.  After the traffic stop, assisting officers searched McAfee's invitee and
sole passenger, Franky Gonzalez, and found the contraband on Gonzalez's rolled-up
pants leg.  Officers recognized Gonzalez from his history of prior arrests and offenses,
none involving a controlled substance.
	Viewed in the proper light and through the prism of the accomplice- and
confidential-informant rules, the evidence supports a jury verdict that McAfee and
Gonzalez were acting together, each contributing some part toward the execution of
their common purpose of knowing or intentional possession of the cocaine. (7)  More
than just fortuitous, the totality of the circumstances affirmatively linked McAfee with
the contraband. (8)
 See Poindexter, 153 S.W.3d at 405-06; Porter, 873 S.W.2d at 732. 
Thus, non-accomplice and non-confidential-informant testimony provide the affirmative 
links sufficient to sustain the conviction on a party theory of culpability.  Poindexter,
153 S.W.3d at 405-06.  Consequently, a rational trier of facts could have found the
essential elements of the offense beyond a reasonable doubt.  Id. at 406.  I conclude
the evidence is legally sufficient.  See Jackson, 443 U.S. at 319;  Poindexter, 153
S.W.3d at 408; Brown, 911 S.W.2d at 748; Aldridge, 482 S.W.2d at 174.
IV.  CONCLUSION 
	Guided by the Poindexter construct, I conclude that the affirmative links are
sufficient-independent and exclusive of the accomplice and confidential informant
testimony.  I therefore concur with the judgment of this Court.  

							ERRLINDA CASTILLO
							Justice

Publish.  Tex. R. App. P. 47.2(b)						
Concurring Opinion delivered and filed 
on this the 26th October, 2006.
1.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  A hypothetically correct
jury charge is one that "accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was tried."  Id.  A
hypothetically correct jury charge would not simply quote from the controlling statute.  Gollihar v. State,
46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by "the statutory elements of the
offense . . . as modified by the charging instrument."  Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim.
App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App.
2000)).   
2.  McAfee has not challenged the sufficiency of the evidence on either a principal or party theory. 
See Tex. R. App. P. 38.1 (e), (h) (brief must state concisely all issues presented for review and must
contain clear and concise argument for contentions made, with appropriate citations to authorities and
record, respectively).  Thus, if evidence of guilt is sufficient, the reviewing court will affirm the verdict
based on either theory.  See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (en banc);
Edwards v. State, 106 S.W.3d 833, 839 (Tex. App.-Dallas 2003, pet. ref'd) (if evidence of guilt is
sufficient either as principal or as party, appellate court must affirm jury's verdict); see also Kitchens
v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 1991).  In determining whether a defendant
participated in an offense as a party, the reviewing court may examine the events occurring before,
during, and after the commission of the offense and may rely on actions of the defendant that show an
understanding and common design to commit the offense.  Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994).  Intent may be inferred from circumstantial evidence such as the acts, words,
and conduct of the accused.  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).  
3.  Mere presence at the scene of the crime is not alone sufficient to prove that a person is a party
to the offense, although it is a circumstance tending to prove guilt which, combined with other facts,
may suffice to show that the accused was a participant.  Beardsley v. State, 738 S.W.2d 681, 685
(Tex. Crim. App. 1987).  
4.  See U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 19 (1968).
5.  The issue of entrapment is not raised where the facts indicate that the criminal design
originated only in the mind of the accused and law enforcement merely furnished the opportunity or
aided the accused in the commission of the crime.  Lopez v. State, 574 S.W.2d 563, 565 (Tex. Crim.
App. 1978). 
6.  One of the assisting officers, patrolman Walter Jameson, testified as follows on cross-examination:

	[Defense Counsel]:  Okay.  The purpose of the car being stopped that day was to effect 
the search, correct?
 
		[Prosecutor]:  I'm going to object.  It's speculative.
 
		The Court:  He can answer if he knows.

	[Defense Counsel]: I mean, you know?

	[Officer Jameson]: I was told that we were looking at a drug deal that was going down.
 
On the prosecutor's re-direct examination, Officer Jameson further testified as follows:
 
	[Prosecutor]:  So, you couldn't stop them because you knew they had drugs on them? 
You had to h ave a reason to-or excuse me-Officer Hernandez did?

	[Officer Jameson]:  There had to be a valid reason for the stop, yes.  
7.  See Ransom, 920 S.W.2d at 302; Patrick, 906 S.W.2d at 487; Rabbani, 847 S.W.2d at 558.
8.  The State need not prove that the defendant had sole possession of the contraband, only that
there are affirmative links between the defendant and the drugs such that he, too, knew of the
contraband and constructively possessed it.  See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim.
App. 2005).  In sum, there is no evidence that would support a conclusion that McAfee was an innocent
bystander to someone else's drug possession given the totality of the circumstances in this case.  See
id.  

