                                   NO. 07-07-0276-CR
                                   NO. 07-07-0277-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 30, 2008
                         ______________________________

                             CHARLES SISCO NEWMAN,

                                                                      Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                                      Appellee
                       _________________________________

              FROM THE 216TH DISTRICT COURT OF KERR COUNTY;

             NOS. A05-278 & A05-320; HON. KARL PROHL, PRESIDING
                      _______________________________

                                    Opinion
                       _________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Appellant, Charles Sisco Newman, was convicted of both possessing a controlled

substance in a drug-free zone and engaging in organized criminal activity. He contends

on appeal that 1) the trial court abused its discretion in ordering the sentences for those

crimes to run consecutively, and 2) the evidence is legally insufficient to support the

conviction of engaging in organized criminal activity. We affirm.
       Stacking of Sentences

       Appellant was tried for both offenses mentioned above in the same criminal trial.

Furthermore, he received a sentence of ten years for possessing methamphetamine and

40 years for engaging in organized criminal activity. The sentences were ordered to run

consecutively by the trial court. Additionally, the accusation about appellant possessing

controlled substances was one of the allegations in the indictment used to illustrate his

involvement in organized criminal activity. These circumstances, according to appellant,

when considered within the framework of §3.03 of the Texas Penal Code, purportedly

require that his sentences run concurrently. We disagree.

       Per §3.03 of the Penal Code:

       When the accused is found guilty of more than one offense arising out of the
       same criminal episode prosecuted in a single criminal action, a sentence for
       each offense for which he has been found guilty shall be pronounced. Except
       as provided by Subsection (b), the sentences shall run concurrently.

TEX . PEN . CODE ANN . §3.03(a)(Vernon Supp. 2008).1 Yet, another statute provides that

“[p]unishment that is increased for a conviction for an offense listed under this section [i.e.

Texas Health and Safety Code, §481.134] may not run concurrently with punishment for

a conviction under any other criminal statute.”                  TEX . HEALTH & SAFETY CODE ANN .

§481.134(h) (Vernon Supp. 2008). Appellant recognizes the conflict between the two

provisions but argues, nonetheless, the former controls. He is mistaken.

       Whether two statutes collide resulting in one overriding the other is a matter of law

that we consider de novo. State v. Salinas , 982 S.W.2d 9, 10 -11 (Tex. App.–Houston [1st



       1
           Nothing in “subsection (b)” applies to the circum stances before us.

                                                       2
Dist.] 1997, pet. ref’d). And, in considering the instant matter de novo, we find guidance

in the recent Court of Criminal Appeals opinion in Williams v. State, 253 S.W.3d 673 (Tex.

Crim. App. 2008).           There, the Court was asked to compare and construe sections

481.132(d) and 481.134(h) of the Health and Safety Code. Per §481.132(d),

       [i]f the accused is found guilty of more than one offense arising out of the
       same criminal episode prosecuted in a single criminal action, sentence for
       each offense for which the accused has been found guilty shall be
       pronounced, and those sentences run concurrently.

TEX . HEALTH & SAFETY CODE ANN . §481.132(d) (Vernon 2003).2                              Yet, §481.134(h)

mandated that the sentences run consecutively, according to the State. The Court

ultimately held that §481.132(d) precluded the trial court from stacking one sentence upon

another in that case. But, it did so not because §481.132(d) trumped the affect of

§481.134(h). Rather, it did so because the multiple convictions there involved were not for

violations of different criminal statutes as required by §481.134(h). So, the two provisions

did not conflict. Williams v. State, 253 S.W.3d at 678. On the other hand, when statutes

do conflict, the Court acknowledged that the specific overrides the general. Id.

       Here, we have the situation missing in Williams. While we have one criminal

episode resulting in joint prosecutions and convictions in the same trial, one prosecution

and conviction involved the possession of controlled substances in a drug-free zone while

the other involved his effort to engage in organized crime. And, because the former

involved a drug-free zone, §481.134(h) of the Health and Safety Code (which expressly

addressed situations involving drug-free zones) was implicated. Again, that provision

specifically focuses upon the ability of the trial court to allow a sentence within the scope


       2
           As can be seen, this verbiage is quite sim ilar to that in §3.03(a) of the Penal Code.

                                                        3
of §481.134(h) to run concurrently with another sentence outside the scope of §481.134.

On the other hand, §3.03(a) of the Penal Code does not deal with offenses occurring with

drug-free zones. Thus, in following the admonishment in Williams that the specific must

control over the general and since §481.134(h) covers the specific circumstances in our

case, we conclude that the trial court had no option but to order that the sentences run

consecutively.

       Issue 2 - Legal Sufficiency

       Next, appellant claims there is insufficient non-accomplice testimony to sustain his

conviction for engaging in organized criminal activity. We disagree.

       To support conviction, non-accomplice testimony need not directly link the accused

to the crime or establish his guilt beyond a reasonable doubt. Rather, it need only tend to

connect him to the offense. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005) (stating

that a conviction may not rest upon the testimony of an accomplice unless that testimony

is corroborated by other evidence tending to connect the defendant to the offense); McDuff

v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). And, it does here.

       Admittedly, accomplices testified that over a period of time, appellant and other

persons, most of whom were drug addicts and concerned on a daily basis with obtaining

their next “fix,” manufactured methamphetamine. So too did several identify appellant as

one of the primary “cooks” of the methamphetamine. Yet, non-accomplice evidence

illustrated that 1) appellant was stopped while driving a vehicle in which were found

ingredients used to cook methamphetamine, 2) at the time of the stop, appellant’s hands

were stained orange, a stain often associated with manufacturing that drug, 3) appellant



                                             4
admitted to the officer that he had cooked methamphetamine two weeks earlier, 4) five

weeks later, appellant again was stopped while driving a vehicle that had left a site

containing     both     a   methamphetamine            laboratory      and     evidence       of   a   recent

methamphetamine cook, 5) someone was observed throwing several small baggies

containing methamphetamine and pseudoephedrine out of the window of the vehicle while

appellant drove it, 6) a red duffle bag was found in the same vehicle, which bag contained

a   letter   from     appellant’s      mother,     drug     paraphernalia       used     to    manufacture

methamphetamine, and a small baggie containing a trace of methamphetamine, 7) all of

the occupants in the vehicle had needle tracks on their arms, and 8) appellant and several

other occupants of the vehicle had orange stains on their hands.3 This is some evidence

which tends to connect appellant to organized criminal activity consisting of the

manufacture of methamphetamine.

        Appellant also argues that the evidence insufficiently establishes that he participated

in a combination because the memories of the accomplices were affected by their drug

use. Furthermore, they only could provide vague details about the time and place of the

cooks and who was present, he continues. Thus, the State allegedly failed to prove the

mens rea required for conviction. We disagree for circumstantial evidence may be used

to prove a defendant’s intent. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002);

Munoz v. State, 29 S.W.3d 205, 209 (Tex. App.–Amarillo 2000, no pet.). And, both the

direct and circumstantial evidence alluded to above provided basis upon which a


        3
           Appellant argues that possession of m etham phetam ine cannot be a predicate offense to engaging
in organized crim inal activity. W hile the sam e m ay be true, the possession of contraband can be used as a
factor in determ ining whether there is sufficient non-accom plice evidence tending to connect appellant to the
charged offense.

                                                      5
reasonable jury could conclude, beyond reasonable doubt, that he intended to establish,

maintain, and participate in a combination and conspiracy to manufacture as well as

intentionally and knowingly manufacture methamphetamine.           Simply put, sufficient

evidence existed upon which a jury could legitimately conclude that he acted with the

requisite mens rea.

      Finally, appellant claims the evidence is insufficient to support the finding that he

used or exhibited a deadly weapon. We disagree. While it may be that the bulk of the

evidence that appellant possessed a sawed off shotgun and threatened to use it in the

event of a raid by police came from accomplice testimony, non-accomplice evidence did

tie him to the crime of engaging in organized criminal activity. And, so long as he was

legitimately connected to the crime in general, accomplice testimony may be used to link

him to the use and exhibition of the shotgun. Vasquez v. State, 56 S.W.3d 46, 48 (Tex.

Crim. App. 2001).

      Having overruled all of appellant’s issues, we affirm the judgments.



                                                Brian Quinn
                                                Chief Justice

Publish.




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