                                          NO. 07-03-0184-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                     FEBRUARY 24, 2004
                               ______________________________

                                         DANASIRNO LUNA,

                                                                            Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

                                   Memorandum Opinion
                            _________________________________

               FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                       NO. 3910; HON. STEVEN EMMERT, PRESIDING
                            _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1

        Appellant Danasirno Luna appeals his conviction of delivery of a controlled

substance in two issues by challenging the legal and factual sufficiency of the evidence to

support that conviction. We affirm the judgment of the trial court.




        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
      Background

      Deputy Sheriff Tommy Hernandez was working undercover with the Panhandle

Narcotics Task Force. On August 24, 2000, he called appellant on his cell phone and told

him he wanted to buy some crack cocaine. Then, Hernandez and his partner, Amarillo

Police Officer David Ponce, went to the home of appellant in Shamrock, Texas, around

11:00 p.m. There, Hernandez was told it would cost him $100 to buy the cocaine and that

he should give his money to appellant’s son, whom Hernandez guessed to be around 15

years old.   During that time, four other men walked into the house. Appellant told

Hernandez and Ponce to return in 15-20 minutes to pick up the drugs. When the officers

returned, appellant handed Ponce a packet of rock cocaine wrapped in aluminum foil. The

officers left, and Ponce returned to Amarillo. The substance obtained from appellant was

analyzed as cocaine, a controlled substance.

       Applicable Law

       The standards by which we review the legal and factual sufficiency of the evidence

are well explained in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuiliani v. State, 97 S.W.3d

589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We

refer the parties to those opinions.

       Next, delivery of a controlled substance is established by evidence that 1) a person

2) knowingly or intentionally 3) delivers 4) a controlled substance. TEX . HEALTH & SAFETY

CODE ANN . §481.112(a) (Vernon 2003); Avila v. State, 15 S.W.3d 568, 573 (Tex. App.--

Houston [14th Dist.] 2000, no pet.). In this instance, the indictment alleged that the



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delivery was by actual transfer, the latter being defined as a complete transfer of the

substance from one person to another. Conaway v. State, 738 S.W.2d 692, 695 (Tex.

Crim. App. 1987).      Such is accomplished by manual delivery of property from the

transferor to the transferee or to the transferee’s agents or someone identified in law with

the transferee. Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992).

       Application of Law

       Here, both Hernandez and Ponce testified that appellant 1) discussed with them the

price of the drugs, 2) directed them to hand the money to his son, and 3) told the officers

to return in 15 to 20 minutes for the drugs. The officers complied and, upon their return,

were handed the cocaine by appellant. Furthermore, Ponce asked if it was “good coc,” to

which appellant replied that it was. This is some testimony upon which a rational trier of

fact could find, beyond a reasonable doubt, that appellant intentionally or knowingly

delivered, by manual transfer, a controlled substance. Thus, the verdict enjoys the support

of legally sufficient evidence.

       As to the existence of factually sufficient evidence, appellant argues that the

testimony of the two undercover officers was insufficient since it was contradicted by and

conflicted with testimony offered by witnesses he presented. For instance, appellant’s son

denied being present at the alleged delivery. This was corroborated by appellant’s mother,

who testified that neither of appellant’s sons could have been at the drug delivery site.

Another witness, who happened to be appellant’s cousin and who the officers said was

present, denied having ever seen the officers. This testimony, according to appellant,

created “a classic swearing match situation and such situations . . . should always be



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resolved in a defendant’s favor where the defendant does not testify . . . .”2 To the extent

that the testimony of various witnesses creates contradictions, it falls upon the jury to judge

the weight and credibility of the evidence and decide who to believe. Allen v. State, 39

S.W.3d 428, 431 (Tex. App.--Houston [1st Dist.] 2001, no pet.); Fletcher v. State, 39

S.W.3d 274, 279-80 (Tex. App.--Texarkana 2001, no pet.). Given that those who testified

favorably for appellant were either his relatives or potential parties to the drug transaction,

the jury may well have decided that they were interested parties unworthy of credence.

And, we are not permitted to interfere with that credibility decision. In short, the testimony

at bar supporting the verdict was not rendered factually insufficient simply because it may

have been contradicted by other evidence.

         Accordingly, we overrule each point of error and affirm the judgment of the trial

court.



                                                               Brian Quinn
                                                                 Justice



Do not publish.




         2
          Appellant cites no authority supporting the proposition that when a “classic swearing match” arises,
those tes tifying fa vorably to the defendant must be believed by the fa ctfinder. Nor do we k now of an y autho rity
so holding.

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