                        NUMBER 13-11-00582-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

ERWIN BURLEY,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 105th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      A jury convicted appellant, Erwin Burley, of possession of one gram or more, but

less than four grams of cocaine in a drug-free zone, a third-degree felony. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.115(a), (c); 481.102(3)(D) (West 2010); § 481.134(c)

(West Supp. 2012). After finding appellant had one previous felony conviction, the jury

assessed punishment at fourteen years' imprisonment.        By two issues, appellant
asserts: (1) the evidence is legally and factually insufficient to sustain his conviction; and

(2) the evidence is legally and factually insufficient to sustain the jury's finding that he

committed the offense in a drug-free zone. We affirm.

                                      I. BACKGROUND

A. State's Evidence

       In August 2010, Albert Leal, a narcotics investigator for the Corpus Christi Police

Department, received a complaint about possible drug activity in a duplex, which had two

apartments. The apartment under suspicion was at 1430 16th Street. A confidential

informant, whom police had previously searched and determined was not possessing

drugs, was sent to the apartment and returned with narcotics. Afterwards, Investigator

Leal obtained a search warrant, and he and other officers went to the apartment. Upon

hearing a knock, Jacob Cibrian opened the door, and the officers entered the apartment.

Investigator Leal saw appellant and an Hispanic male in the living room. During the

search, police found "a baggy containing crack cocaine and marijuana that was found on

the floor."   Investigator Leal testified he found approximately $300 in Cibrian's

possession. When the prosecutor asked Investigator Leal, "Do you frequently find large

amounts of cash in crack houses on the people that are selling?", he said, "I wouldn't

consider $300 large, but that's common for a drug house like that." When asked what

was seized during the execution of the search warrant, he said, "We seized the

surveillance cameras, the drugs and the cash that Cibrian had on his person."

       Amy Arellano, a forensic scientist for the Texas Department of Public Safety,

tested the drugs seized at the apartment. She testified the test showed "2.05 grams


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containing cocaine."

        Cibrian1 testified he met appellant at a convenience store in Corpus Christi about

six or seven months before the police searched the apartment. When the prosecutor

asked Cibrian, "How did you and [appellant] come to be involved in drug sales at 1430

16th Street?", he said:

               We had, . . . met up at the store one time, and that's when I ran into
        him, when I met him. And he knew a couple of customers and I knew a
        couple of customers, and, . . . we both came to an agreement to open up,
        which is called a "dope house", to sell crack cocaine to people.

                * * *

        There were four duplexes and that was for rent, and we just called up the
        "for rent" number on there and that's when we went ahead and . . .
        contacted the landlord and we went ahead and rented it.

        Because appellant did not have identification, he could not rent the apartment

without Cibrian's help. Cibrian provided his ID to the landlord in order for appellant and

him to rent the apartment. They paid the rent using the money they made from selling

crack cocaine. With respect to profit sharing, Cibrian testified that appellant:

        would get a good size amount of dope and cut in between and just divide it,
        which is, like, half for him and half for me. And then, I'd work one night or
        I'd work two nights, and then he would work a night or two nights. And we
        would—like when we make all the money together, then we'll put it together
        and we'd just split the profit.

        Cibrian stated their drug-selling business was "pretty much continuously operating

from the time" he "took out the lease until the police stopped it[.]" He and appellant

packaged the cocaine and sold it in "$10" amounts. They bought a surveillance camera

from one of appellant's friends and mounted it in the corner of the duplex, facing the

        1
        With respect to Cibrian's involvement in this case, he had earlier pleaded guilty, without a plea
agreement, and was placed on community supervision.
                                                    3
street. Cibrian testified that on the day the police searched the apartment, he arrived

there earlier and saw the baggy of cocaine, which the police found on the floor, "[i]n the

middle of the table . . . ." Before the police arrived, appellant sold some of the cocaine to

customers. When Cibrian went to open the door for the police, appellant "stashed it [the

baggy of cocaine] in the couch." When the police came in, appellant was by the couch.

       Cibrian testified he was "sentenced" for possession of marihuana on two

occasions; January 23, 2009 and August 25, 2010. He also had a conviction for assault

causing bodily injury to his common-law wife.

B. Defense Evidence

       Pastor Willie Simpson, who knew appellant for a couple of years, testified

appellant did mainly "odd jobs" such as working with windows and scrap metal. He

stated appellant lived on "10th Avenue in some apartments."

       Nicholas Montalvo, a real-estate owner, owned some fourplexes on 10th Street in

Corpus Christi. When defense counsel asked him if appellant "live[d] there?", he said

appellant "was there with different people, at times[,]" but "[h]e was not on a lease."

       Joyce Madden, the owner of the duplex where Cibrian and appellant were

arrested, testified Cibrian and his wife, Amber, rented the apartment at 1430 16th Street.

They were "on the lease," and Cibrian, who lived there approximately two years, paid the

rent on a regular monthly basis. She never collected rent from appellant. However, she

saw appellant there "quite frequently" and found his billfold, with his driver's license

inside, in the living room of the apartment, underneath the carpet.

       Appellant testified he worked as a "window cleaner" and never lived in the


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apartment at 1430 16th Street. On June 7, 2010, he was in Dallas, Texas. At some

point, he returned to Corpus Christi. Appellant explained that on the day the police

searched the apartment, he was there, cleaning the yard. When he finished, he went

into the apartment to get paid for his work.                He was inside the apartment "just

momentarily" when Investigator Leal came into the apartment with the search warrant.

Appellant testified he did not use drugs, did not buy or sell "crack," and did not "know

anything about a drug house."

        When the prosecutor asked him, "[A]re you the same Erwin Phillip Burley that was

convicted of a robbery in Georgia back in July of 1978, . . . ?", he said, "That's me. . . ."

He also admitted he had a 2004 conviction in Dallas County for robbery and a 2001

conviction in Dallas County for burglary of a vehicle.

        Dino Maysonet, a deputy at the McKenzie Annex Facility, testified that "the only

thing I could say about Mr. Burley is, . . . his good conduct while he's been incarcerated."

He stated that "at all times" appellant obeyed the rules and regulations.

                                        II. DISCUSSION

A. Sufficiency of the Evidence

        In issue one, appellant contends the evidence is legally and factually 2 insufficient

to sustain his conviction.



        1. Standard of Review

        "When reviewing a case for legal sufficiency, we view all of the evidence in the light

        2
          The court of criminal appeals has abolished factual-sufficiency review. See Howard v. State,
333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). Thus, with respect to both of appellant's issues, we will
only address his legal-sufficiency challenges.
                                                   5
most favorable to the verdict and determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt." Winfrey v. State,

323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)).    "Consequently, we 'determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when

viewed in the light most favorable to the verdict.'" Id. at 879 (quoting Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)).        "It has been said, quite appropriately, that '[t]he

appellate scales are supposed to be weighted in favor of upholding a trial court's

judgment of conviction, and this weighting includes, for example, the highly deferential

standard of review for legal-sufficiency claims.'"     Id. (quoting Haynes v. State, 273

S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S.

at 319)). "We must therefore determine whether the evidence presented to the jury,

viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that

appellant" committed the crime for which the jury found him guilty. See id. "It is the

obligation and responsibility of appellate courts 'to ensure that the evidence presented

actually supports a conclusion that the defendant committed the crime that was charged.'"

Id. at 882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).

"Furthermore, '[i]f the evidence at trial raises only a suspicion of guilt, even a strong one,

then that evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d

114, 116 (Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State,

125 S.W.3d 436, 443 (Tex. Crim. App. 2002).


                                              6
      In a prosecution for possession of a controlled substance, the State must prove the

accused exercised care, custody, control, or management over the substance and that

the accused knew the substance was contraband. See TEX. HEALTH & SAFETY CODE

ANN. § 481.002(38) (West 2010) (stating "'Possession' means actual care, custody,

control, or management"); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006)

(stating the accused must know "the matter possessed was contraband"). "'When 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.'" Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim.

App. 2005) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). In

Evans, the court of criminal appeals stated:

      Regardless of whether the evidence is direct or circumstantial, it must
      establish that the defendant's connection with the drug was more than
      fortuitous. This is the so-called 'affirmative links' rule which protects the
      innocent bystander—a relative, friend, or even stranger to the actual
      possessor—from conviction merely because of his fortuitous proximity to
      someone else's drugs.

Evans, 202 S.W.3d at 161–62 (footnote omitted).

      Relevant non-exclusive links tending to connect the accused to knowing

possession include:    (1) whether the accused was present when the search was

conducted; (2) whether the contraband was in plain view; (3) whether the narcotic was in

close proximity to and accessible by the accused; (4) whether the accused was under the

influence of narcotics when arrested; (5) whether the accused possessed other

contraband or narcotics when arrested; (6) whether the accused made incriminating

                                               7
statements when arrested; (7) whether the accused tried to flee; (8) whether the accused

made furtive gestures; (9) whether there was an odor of contraband; (10) whether other

contraband or drug paraphernalia was present; (11) whether the accused either owned or

had the right to possess the place where the drugs were found; (12) whether the place

where the drugs were found was enclosed; (13) whether the accused was found with a

large amount of cash; and (14) whether the accused's conduct indicated a consciousness

of guilt. Id. at 162 n.12; Isbell v. State, 246 S.W.3d 235, 238 (Tex. App.—Eastland 2007,

no pet.). The legal issue with respect to these "links" is "'whether there was evidence of

circumstances, in addition to mere presence, that would adequately justify the conclusion

that the defendant knowingly possessed the substance.'" Evans, 202 S.W.3d at 162 n.9

(quoting Evans, 202 S.W.3d at 166 (Womack, J., concurring)). "It is . . . not the number

of links that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial." Id. at 162.

       2. The Accomplice-Witness Rule

       In Smith v. State, the court of criminal appeals stated that, "under Texas Code of

Criminal Procedure Article 38.14, a conviction cannot stand on an accomplice witness's

testimony unless the testimony is corroborated by other, non-accomplice evidence that

tends to connect the accused to the offense." 332 S.W.3d 425, 439 (Tex. Crim. App.

2011) (citing TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005)). "An accomplice is a

person who participates in the offense before, during, or after its commission with the

requisite mental state." Id. (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.

2007)). "Presence at the crime scene does not make a person an accomplice; an


                                             8
accomplice must have engaged in an affirmative act that promotes the commission of the

offense that the accused committed." Id. (citing Druery, 225 S.W.3d at 498). "A person

is not an accomplice if the person knew about the offense and failed to disclose it or

helped the accused conceal it." Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex.

Crim. App. 1987); Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748 (Tex.

Crim. App. 2006). "A witness who is indicted for the same offense or a lesser-included

offense as the accused is an accomplice as a matter of law." Id.; Cocke, 201 S.W.3d at

748.

       In the instant case, it is undisputed that Cibrian, who sold drugs from the apartment

at 1430 16th Street and who subsequently pleaded guilty for his participation, is an

accomplice. See id. (stating that "[a]n accomplice is a person who participates in the

offense before, during, or after its commission with the requisite mental state.") (citing

Druery, 225 S.W.3d at 498). Thus, for appellant's conviction to rest upon Cibrian's

testimony, "'there must simply be some non-accomplice evidence which tends to connect

appellant to the commission of the offense alleged in the indictment.'" Brown v. State,

270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (quoting McDuff v. State, 939 S.W.2d 607,

613 (Tex. Crim. App. 1997)) (emphasis in original).

       3. Sufficiency of the Non-Accomplice Evidence

       "When reviewing the sufficiency of non-accomplice evidence under Article 38.14,

we decide whether the inculpatory evidence tends to connect the accused to the

commission of the offense." Id. at 442 (citing Brown v. State, 672 S.W.2d 487, 488 (Tex.

Crim. App. 1984)). "The sufficiency of non-accomplice evidence is judged according to


                                             9
the particular facts and circumstances of each case." Id. (citing Reed v. State, 744

S.W.2d 112, 126 (Tex. Crim. App. 1988)). "The direct or circumstantial non-accomplice

evidence is sufficient corroboration if it shows that rational jurors could have found that it

sufficiently tended to connect the accused to the offense." Id. (citing Simmons v. State,

282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Reed, 744 S.W.2d at 126)). "[I]t is not

appropriate for appellate courts to independently construe the non-accomplice evidence."

Id. (citing Simmons, 282 S.W.3d at 508). Instead, we are required "to consider the

combined force of all of the non-accomplice evidence that tends to connect the accused

to the offense." Id. (citing Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App.

1983)).

       Here, to satisfy article 38.14, the State relied on the following non-accomplice

evidence: (1) testimony that appellant was inside the apartment when the police entered

it with the search warrant; (2) testimony that Investigator Leal did not see appellant enter

the apartment (as appellant testified he did) just before he entered the apartment with the

search warrant; (3) testimony that the baggy of cocaine was lying on the floor of the

apartment in plain view; (4) testimony that prior to the time the police arrived at the

apartment with the search warrant, appellant was frequently seen at the apartment.

After considering the combined force of all of the non-accomplice evidence that tends to

connect appellant to the offense, we hold the evidence is sufficient to tend to connect

appellant to the offense for which he was convicted.

       4. Analysis

       Appellant's connection to the cocaine seized from the apartment was more than


                                             10
fortuitous.   The evidence showed Cibrian and appellant were partners in a

cocaine-selling operation conducted from the apartment. When Cibrian arrived at the

apartment on the day the police searched it, appellant was inside the apartment, and the

cocaine was on a table. When the police entered the apartment with the search warrant,

appellant was still in the apartment, and the cocaine wound up on the floor in plain view.

The amount of cocaine seized from the apartment constituted 2.05 grams.

       "In an unlawful possession of a controlled substance case, . . . the control need not

be exclusive, but can be jointly exercised with one or more persons." Cude v. State, 716

S.W.2d 46, 47 (Tex. Crim. App. 1986). In this case, a rational jury could have reasonably

concluded that appellant jointly possessed the cocaine in question for sale to customers.

Accordingly, the evidence showed appellant knew the substance was contraband

(cocaine) and that he exercised care, custody, control, or management over the

substance. Viewing all of the evidence in the light most favorable to the verdict, as we

must, a rational jury could have found beyond a reasonable doubt that appellant

intentionally or knowingly possessed the cocaine that the officers found. See Jackson,

443 U.S. at 319; Evans, 202 S.W.3d at 162 n.12. We hold the evidence is legally

sufficient to support appellant's conviction. Issue one is overruled.

B. Drug-Free Zone

       In issue two, appellant contends the evidence is legally and factually insufficient to

sustain the jury finding that he possessed the cocaine in a drug-free zone.             The

indictment alleged the offense occurred in a drug-free zone under section 481.134(c) of

the Texas Health & Safety Code. Specifically, the indictment alleged, in relevant part:


                                             11
       JACOB CIBRIAN AND ERWIN BURLEY, defendants, on or about AUGUST
       12, 2010, in Nueces County, Texas, did then and there knowingly possess,
       with intent to deliver, a controlled substance, namely, COCAINE, in an
       amount of one gram or more but less than four grams,

       And it is further presented in and to said Court that the Defendant
       committed the above within 1,000 feet of real property owned by a school,
       namely Allen Elementary School, . . . .

       Section 481.134(c) of the Texas Health and Safety Code provides, in relevant part,

"The minimum term of confinement or imprisonment for an offense otherwise punishable

under Section . . . 481.115(c)-(f), . . . is increased by five years" if committed in a drug-free

zone. TEX. HEALTH & SAFETY CODE ANN. 481.134(c) (emphasis added). Appellant's

conviction is for an offense under section 481.115(c), which is listed within the

drug-free-zone statute in subsection (c) of article 481.134. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.115(c), 481.134(c).

       In this case, appellant was convicted of possession of one gram or more, but less

than four grams of cocaine, a third-degree felony.          See id. § 481.115(a), (c).       "An

individual adjudicated guilty of a felony of the third degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term of not more than

10 years or less than 2 years." TEX. PENAL CODE ANN. § 12.34(a) (West 2011). Even

assuming there is no evidence to support the jury's finding that appellant possessed the

cocaine in a drug-free zone; i.e., within 1,000 feet of real property owned by a school,

namely Allen Elementary School, this would have only affected the minimum punishment

for a third-degree felony. However, the jury also found that appellant had one previous

felony conviction. Thus, he was sentenced as a repeat-felony offender and received a

fourteen-year sentence. Section 12.42 of the Texas Penal Code provides, in relevant

                                               12
part, that "[I]f it is shown on the trial of a felony of the third degree that the defendant has

previously been finally convicted of a felony . . . on conviction the defendant shall be

punished for a felony of the second degree." Id. § 12.42(a) (West Supp. 2012). "An

individual adjudicated guilty of a felony of the second degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term of not more than

20 years or less than two years." Id. § 12.33(a) (West 2011).

       Appellant's conviction was enhanced from a third-degree felony to a

second-degree felony, pursuant to section 12.42(a). And, his punishment fell within the

punishment range of a second-degree felony.            Accordingly, the issue whether the

evidence is legally sufficient to support the jury's finding that appellant possessed the

cocaine in a drug-free zone is irrelevant to the punishment and had no effect on

appellant's sentence. Issue two is overruled.

                                       III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
31st day of August, 2012.




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