                                    NO. 07-09-00012-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                     MARCH 22, 2011


                    KAREEM ABDUL-JABBAR WHITE, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

            NO. B4157-0711; HONORABLE EDWARD LEE SELF, JUDGE


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


                               MEMORANDUM OPINION

       Presenting four points of error, appellant Kareem Abdul-Jabbar White appeals

his jury conviction of delivery of a controlled substance in a drug-free zone and the

resulting sentence of four years in the Institutional Division of the Texas Department of

Criminal Justice. We will affirm.


                                       Background


       By a November 2007 indictment, appellant was charged with “intentionally or

knowingly deliver[ing], by actual transfer, to Jo Ann Fernandez, a controlled substance,

namely cocaine, in an amount of less than one gram … within 1,000 feet of Circle Park,
a playground….”1 The indictment also contained an enhancement paragraph setting

forth appellant’s previous felony conviction for robbery.


       Evidence showed on May 5, 2006, appellant made a sale of cocaine to a

confidential informant, Jo Ann Fernandez. Fernandez had an audio recorder to record

the transaction and was given a $50 bill. Troopers followed her to an address in Tulia,

Texas. She knocked on the door and appellant’s wife, Chandra, opened the door.

Appellant was inside the residence, “messing with something white in the [kitchen]

shelves.” After Fernandez told Chandra she “needed some rock,” Fernandez testified,

she saw appellant hand “something” to Chandra, who then handed the item to

Fernandez. Fernandez paid Chandra the $50. The item appeared to be the drugs she

asked to buy in the amount she requested. After Fernandez and the following officers

left the residence, Fernandez gave the drugs to a trooper, who also testified. A forensic

scientist testified the substance contained .45 grams of cocaine. The jury also heard the

audio recording of the transaction.


       Later on the morning of the buy, police executed a search warrant for appellant’s

residence. Troopers seized a small amount of marijuana, two digital scales, packaging

material with suspected crack cocaine residue, and $900 in cash. Among the $900 was

a $50 bill with a serial number the trooper said matched that of the $50 bill given to

Fernandez to make the buy. Appellant and Chandra were later arrested.


       1
          See Tex. Health & Safety Code Ann. § 481.112(b) (West 2001); Tex. Health &
Safety Code Ann. § 481.134 (West 2003). This offense is a state jail felony, punishable
as a third degree felony because it took place in a drug free zone. Id. The punishment
range for this offense was imprisonment for a term of not less than 2 years or more than
10 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West 2003).
                                             2
       The jury found appellant guilty as charged in the indictment and sentenced him to

four years of imprisonment. This appeal followed.


                                         Analysis


Jury Instructions


       In appellant’s first point of error, he contends the trial court erred by failing to

include in the jury charge an accomplice-witness instruction concerning appellant’s

wife’s testimony. Chandra was also charged as a result of the undercover buy and, if

called to testify by the State, would have been an accomplice witness as a matter of

law. Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002). But appellant called

Chandra to testify at trial. Testimony elicited from a witness called by the accused and

offered by the accused is not accomplice-witness testimony which must be

corroborated. Selman v. State, 807 S.W.2d 310, 311 (Tex.Crim.App. 1991); Brown v.

State, 576 S.W.2d 36, 42 (Tex.Crim.App. 1978) (panel op.); Cunningham v. State, No.

06-05-00215-CR, 2006 Tex.App. LEXIS 8206 (Tex.App.—Texarkana Aug. 19, 2006,

pet. ref’d). "[A]ccomplice-witness testimony must be corroborated and the jury so

instructed only when the State calls the witness and seeks to rely on such witness's

testimony." Id. No accomplice-witness jury instruction was required as to Chandra’s

testimony. Point of error one is overruled.


       In appellant’s second point of error, he argues the trial court erred in failing to

instruct the jury on the law regarding testimony presented by a person covertly

cooperating with police, pursuant to Texas Code of Criminal Procedure Article 38.141.

The State concedes the trial court erred.
                                              3
       Like the testimony of an accomplice, the testimony of a covert State witness is

viewed with caution, and cannot form the basis for conviction unless corroborated by

other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc.

Ann. art. 38.141 (West 2010); Simmons v. State, 205 S.W.3d 65, 76 (Tex.App.—Fort

Worth 2006, no pet.), citing Herron, 86 S.W.3d at 631. And, when the State elicits

testimony from an informant or other covert witness for the purpose of proving guilt, the

defendant is entitled to an instruction that conviction cannot be based on such testimony

unless there is other evidence tending to connect the defendant with the offense, and

that evidence showing only the commission of the offense is insufficient. Simmons, 205

S.W.3d at 77.


       Appellant did not object at trial to the court's failure to so instruct the jury. See

Herron, 86 S.W.3d at 632 (applying harm analysis to similar errors). The failure to

preserve jury-charge error is not a bar to appellate review, but rather establishes the

degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461

(Tex.Crim.App. 2008). Because appellant did not object to the instruction's omission,

the error does not result in reversal "unless it was so egregious and created such harm

that appellant was denied a fair trial." Id.


       The defendant is not egregiously harmed by the omission of a corroborating-

evidence instruction if evidence other than the testimony of the informant is present to

fulfill the purpose of the instruction. Simmons, 205 S.W.3d at 77, citing Herron, 86

S.W.3d at 632. A harm analysis for error in omitting the cautionary instruction on the

requirement of corroborating evidence must be "flexible," taking into consideration both

                                               4
the existence and the strength of such other evidence. Id. In determining the strength of

the corroborating evidence, we must examine: (1) its reliability or believability; and (2)

the strength of its tendency to connect the defendant to the offense. Id. Omission of the

article 38.141 instruction will generally not result in egregious harm "unless the

corroborating evidence is so unconvincing in fact as to render the State's overall case

for conviction clearly and significantly less persuasive." Simmons, 205 S.W.3d at 77,

citing Saunders v. State, 817 S.W.2d 688, 689 (Tex.Crim.App. 1991).


      To corroborate confidential informant testimony, like accomplice testimony, all

the law requires is that there be some independent evidence which tends to connect the

accused to the commission of the offense. Cantelon v. State, 85 S.W.3d 457, 460-61

(Tex.App.--Austin 2002, no pet.), citing Hernandez v. State, 939 S.W.2d 173, 178-79

(Tex.Crim.App. 1997). To determine the sufficiency of the corroboration, we eliminate

the testimony of the informant and ask whether other inculpatory evidence tends to

connect the accused to the commission of the offense, even if it does not directly link

the accused to the crime. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997),

Casias v. State, 36 S.W.3d 897, 901 (Tex.App.--Austin 2001, no pet.). We must view

the corroborating evidence in the light most favorable to the verdict. Knox v. State, 934

S.W.2d 678, 686-87 (Tex.Crim.App. 1996); Gill v. State, 873 S.W.2d 45, 48

(Tex.Crim.App. 1994).


      Evidence corroborating Fernandez’s testimony includes the audio recording of

the transaction. Although Chandra insisted during her testimony that the recording must




                                            5
have been made at another time and location,2 she nonetheless identified her own

voice and also identified the male voice on the recording as appellant’s. Viewed in the

light most favorable to the verdict, her testimony, coupled with that of the trooper

concerning the time and place the recording was made, placed appellant at the

residence at the time of the drug buy. The drug buy took place at appellant’s residence.

Fernandez and her car were searched before and after the buy. Troopers testified

Fernandez did not have any drugs before she left for the buy but returned after the buy

with crack cocaine. A trooper testified he recorded the serial number of the $50 bill he

gave to Fernandez and testified a $50 bill with a matching number was recovered after

the search warrant was executed at appellant’s residence, hours after the buy.

Appellant was present at his residence when the search warrant was executed.


         The evidence corroborating Fernandez’s testimony is sufficient to satisfy the

“tends-to-connect” standard. We find the jury could have considered the corroborating

evidence of appellant’s guilt reliable and believable, and that it had a strong tendency to

connect appellant with the offense. Simmons, 205 S.W.3d at 77. The corroborating

evidence is not so unconvincing in fact as to render the State's overall case for

conviction clearly and significantly less persuasive. Accordingly, while the trial court

erred in failing to instruct the jury pursuant to article 38.141, appellant did not suffer

egregious harm from the court's failure to do so. We overrule appellant's second point of

error.



         2
          On the recording, the jury heard Fernandez ask Chandra if she had gotten her
phone fixed. Chandra testified her phone was broken while she lived at another house,
not the house the police searched in May 2006.  
                                            6
Sufficiency of the Evidence


       By appellant’s third point of error, he contends the evidence was legally and

factually insufficient to show he constructively delivered cocaine. This point of error is

premised on his first two points of error; that is, he argues that once the informant’s and

his wife’s testimony is excluded, there is insufficient evidence of his commission of the

offense.


       Since appellant’s brief was filed, the Court of Criminal Appeals decided Brooks v.

State, 323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240 (Tex.Crim.App. 2010). In that

case, the court determined the sufficiency of the evidence should be reviewed only

under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). We will therefore review the evidence in a light most favorable to

the verdict for appellant’s sufficiency claim.3


       Under Jackson, an appellate court views the evidence in the light most favorable

to the verdict to determine whether a rational fact finder could have found each element

       3
         The previously-applied factual sufficiency standard considers whether the
evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such
that the jury's verdict is against the great weight and preponderance of the evidence.
Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204
S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question is
whether, considering all the evidence in a neutral light, the jury was rationally justified in
finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we
applied such a standard to review of the evidence, we could not sustain appellant's
contention. From our review of the entire record, the finding of appellant's guilt was
neither clearly wrong and manifestly unjust nor against the great weight and
preponderance of the evidence.

 
                                              7
of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95

(Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001),

citing Jackson, 443 U.S. at 319. If, based on all the evidence, a reasonably minded jury

must necessarily entertain a reasonable doubt of the defendant's guilt, due process

requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at

95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied,

507 U.S. 975, 113 S. Ct. 1422, 122 L. Ed. 2d 791 (1993).


       Appellant's evidentiary sufficiency argument is founded on a contention that only

Chandra and Fernandez could give direct evidence of appellant's delivery of crack

cocaine. However, circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.

2007), and the circumstances we have described, reflected in the testimony of the

officers, the recording and the presence of the $50 bill, are probative of appellant’s guilt.

Next, we again note Chandra was called to the stand by appellant and there is no

reason to exclude her testimony from our consideration. Further, the jury was free to

believe and rely on Fernandez’s testimony. Article 38.141 does not render the testimony

of a person cooperating with police incompetent. Nor does article 38.141 say that the

jury should be skeptical of the testimony or give it less weight than other evidence.

Herron, 86 S.W.3d at 632. Instead, once it is determined that corroborating evidence

exists, the purpose of the 38.141 instruction is fulfilled and the instruction plays no

further role in the fact finder's decision-making. Id.




                                               8
       We find, after viewing the evidence in the appropriate light, that a rational jury

could have found each element of the offense beyond a reasonable doubt. Appellant's

third point of error is overruled.


Exclusion of Confidential Informant Evidence


       Through his fourth point of error, appellant contends the trial court erred by

excluding evidence of his defensive theory that another confidential informant attempted

unsuccessfully to purchase a controlled substance from appellant.


       Seeking to pursue his defensive theory that the other alleged informant, rather

than Fernandez, was the person who came to appellant’s home on the date of the buy,

on cross examination of a trooper, appellant asked for the names of his other

confidential informants. The State objected on the bases of relevance and the potential

of placing cooperating individuals in harm’s way. The court sustained the State’s

objection. The trooper then testified he did not use any other informants to make drug

buys from appellant.


       During appellant’s case, his wife Chandra testified to an occasion on which the

other alleged informant came to their home seeking to buy drugs. Chandra said she

told the woman to leave. Chandra also testified Fernandez did not come to their home

on the date of the buy described in the indictment. That testimony, however, was not

before the trial court at the time the court made the ruling of which appellant complains.

The court had only the testimony of the trooper before it when it made its ruling. Our

review of the trial court’s ruling is limited to the evidence that was before it at the time of

the ruling.    Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000) (In
                                              9
reviewing trial court’s ruling on the admissibility of evidence, the “appellate court must

review the trial court’s ruling in light of what was before the trial court at the time the

ruling was made”). We can find no error in the court’s ruling based on the evidence

before it at the time it sustained the State’s objection.


       We overrule appellant’s final point of error. Having overruled appellant's points of

error, we affirm the trial court's judgment.




                                                            James T. Campbell
                                                                 Justice




Do not publish.




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