Opinion filed August 30, 2019




                                    In The


        Eleventh Court of Appeals
                                 __________

      Nos. 11-17-00313-CR, 11-17-00314-CR, & 11-17-00315-CR
                            __________

             ORLANDO ELEAZAR GUEVARA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 35th District Court
                            Brown County, Texas
            Trial Court Cause Nos. CR24084, CR24136, & CR24170

                      MEMORANDUM OPINION
      The jury convicted Orlando Eleazar Guevara of three offenses: delivery of a
controlled substance in a drug-free zone (Cause No. 11-17-00313-CR, Trial Court
Cause No. CR24084), possession of a controlled substance in a drug-free zone with
the intent to deliver (Cause No. 11-17-00314-CR, Trial Court Cause No. CR24136),
and engaging in organized criminal activity (Cause No. 11-17-00315-CR, Trial
Court Cause No. CR24170). See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112,
481.134 (West 2017); TEX. PENAL CODE ANN. § 71.02 (West Supp. 2018). The trial
court sentenced Appellant to two concurrent terms of fifteen years in the Institutional
Division of the Texas Department of Criminal Justice for the convictions for delivery
of a controlled substance and possession of a controlled substance. The trial court
sentenced Appellant to confinement for a term of twenty years in the Institutional
Division of the Texas Department of Criminal Justice for the conviction for engaging
in organized criminal activity. Additionally, the trial court ordered that the sentence
of twenty years in Cause No. 11-17-00315-CR is to be served consecutively to the
two fifteen-year sentences.
      In a “combined” brief, Appellant brings four issues in these appeals. In his
first issue, Appellant contends that the trial court abused its discretion when it denied
his requested instruction with respect to the offense of engaging in organized
criminal activity. In his second and third issues, Appellant asserts that the evidence
is insufficient to support his convictions for engaging in organized criminal activity
and possession with intent to distribute. In his fourth issue, Appellant contends that
the trial court abused its discretion when it admitted an officer’s opinion testimony.
We affirm.
                                  Background Facts
      In May 2015, Nora Crawford worked as a confidential informant for
Detective Joe Aaron Taylor of the Brownwood Police Department. Crawford
arranged a controlled buy of 1.75 grams of methamphetamine from Elizabeth
Willett.   Crawford testified that Willett told her that Willett would get the
methamphetamine from Willett’s brother, Kevin Allen. Willett instructed Crawford
to come to a residence located on Vincent Street in Brownwood on May 19. Before
Crawford proceeded to the residence, Detective Taylor searched Crawford and
equipped her with audio and video recording devices.


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      When Crawford arrived, Willett stated that she would “get it” and went into a
bedroom. Crawford testified that both Allen and Appellant were in the bedroom.
Willett returned with the methamphetamine, and Crawford gave her money.
Crawford then weighed the methamphetamine and asked about purchasing more.
Willett told Crawford that they would have more later. Crawford testified that she
believed that Willett was referring to Allen and Appellant because Willett was going
to be at work. Crawford set up with Willett another purchase of methamphetamine
from Allen that would occur later that day. Crawford left the residence and met with
Detective Taylor. Crawford informed Detective Taylor that she would be making
another controlled purchase later that afternoon.
      Before the second controlled buy, Crawford again met with Detective Taylor,
and he searched her and equipped her with audio and video recording devices. Then,
Crawford returned to the residence on Vincent Street.         However, instead of
purchasing methamphetamine from Allen, she purchased methamphetamine from
Appellant because Allen did not have anymore. Again, Crawford left the residence
and met with Detective Taylor.
      Over the next three days, Crawford returned to the residence numerous times
but stayed in contact with Officer Taylor. Crawford testified that a supply of
methamphetamine was supposed to be delivered to the residence on Vincent Street
on the night of May 21, 2015. Crawford waited all night for the supply to arrive, but
it did not arrive. Crawford left that morning and later learned the supply was
delivered after she left. She returned later that day, and Appellant, Allen, Willett,
and Willett’s husband were at the residence. Crawford testified that Appellant told
her that he hid the methamphetamine outside because he thought the police were
watching him. Appellant was the only person who knew where the
methamphetamine was hidden. Crawford conducted a third controlled buy from


                                          3
Appellant that day.    As in the previous controlled buys, Crawford met with
Detective Taylor before and after the purchase.
      In addition to the drug transactions referenced above, Crawford testified that
she observed Willett, Allen, and Appellant sell methamphetamine on numerous
occasions to other people and cooperate with each other in making those sales. She
testified that all three were doing the packaging and all three were conducting sales.
Crawford observed Willett setting up drug purchases over the phone. Crawford also
observed Willett “collect debts” on behalf of Appellant and Allen.
      Subsequently, Detective Taylor obtained and executed a search warrant at the
residence on Vincent Street.      When Detective Taylor executed the warrant,
Appellant fled the house and was arrested shortly thereafter. Allen surrendered 2.36
grams of methamphetamine located underneath couch cushions. Additionally, law
enforcement located 17.46 grams of methamphetamine in a bathtub, as well as drug
paraphernalia and packaging materials throughout the house.
      Willett and Allen also testified at trial. The State called both of them as
witnesses after they had pleaded guilty to offenses arising from the events related to
Crawford’s activities described above. Willett denied selling drugs with Appellant
and Allen, and she denied knowing that Appellant and Allen were selling drugs from
the house. She testified that she sold the methamphetamine to Crawford on the first
occasion from her own supply without any participation with Appellant or Allen.
Willett further testified that she did not know why she twice went into the bedroom
where Appellant and Allen were located during the first drug transaction. Willett
also denied setting up the second drug buy for Crawford to purchase
methamphetamine from Appellant or Allen.
      Allen acknowledged that he and Appellant sold methamphetamine from the
house, including selling it to Crawford, but he denied that Willett had any knowledge


                                          4
or participation in their drug sales. Allen also acknowledged that he was present in
the bedroom when Willett entered it twice during the first drug transaction.
However, he denied that either he or Appellant provided the methamphetamine that
Willett delivered to Crawford. Allen also denied that Willett found drug customers
for Allen and Appellant.
                             Sufficiency of the Evidence
      In his second and third issues, Appellant contends that the evidence was
insufficient to support his convictions for engaging in organized criminal activity
and possession with intent to deliver. We review a challenge to the sufficiency of
the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S.
307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v.
State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we review all of the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting
a sufficiency review, we consider all the evidence admitted at trial, including pieces
of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). We defer to the factfinder’s role as the sole judge of the witnesses’
credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at
899. This standard accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the
record supports conflicting inferences, we presume that the factfinder resolved the




                                          5
conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S.
at 326; Clayton, 235 S.W.3d at 778.
      Appellant contends that the evidence was insufficient to support his
conviction for engaging in organized criminal activity. As relevant to this appeal, a
person engages in organized criminal activity “if, with the intent to establish,
maintain, or participate in a combination or in the profits of a combination . . . , [he]
commits or conspires to commit one or more [enumerated offenses].” PENAL
§ 71.02.(a). A combination is “three or more persons who collaborate in carrying
on criminal activities.” Id. § 71.01(a) (West 2011). The indictment alleged that
Appellant, Allen, and Willett collaborated and conspired to commit the offense of
manufacture or delivery of methamphetamine. Appellant asserts that the evidence
was insufficient to show that three people combined to work together because Willett
was not involved in a continuing course of criminal activities.
      Appellant premises his evidentiary challenge on the testimony of Willett and
Allen to the extent that they denied that Willett had any knowledge of or
participation in Appellant’s and Allen’s drug transactions. Appellant acknowledges
that Willett’s and Allen’s testimony conflicts with Crawford’s testimony concerning
Willett’s involvement with Appellant’s and Allen’s drug transactions. Appellant
contends that Crawford’s testimony was uncorroborated testimony from a covert
agent upon which the jury could not rely.
      In Cook v. State, we addressed the corroboration requirement for the
testimony of a covert agent. 460 S.W.3d 703 (Tex. App.—Eastland 2015, no pet.).
Article 38.141 of the Texas Code of Criminal Procedure sets out the covert agent
rule. See TEX. CODE CRIM. PROC. ANN. art. 38.141 (West 2005). The standard for
evaluating the sufficiency of the corroboration of the testimony of a covert agent is
the same as that used for evaluating the sufficiency of the corroboration of the


                                            6
testimony of an accomplice witness. Malone v. State, 253 S.W.3d 253, 256–58 (Tex.
Crim. App. 2008); Cook, 460 S.W.3d at 708. Thus, when weighing the sufficiency
of corroborating evidence under Article 38.141(a), we must exclude the testimony
of the covert agent from consideration and examine the remaining evidence to
determine whether there is evidence that tends to connect the defendant to the
commission of the offense. Malone, 253 S.W.3d at 258; Cook, 460 S.W.3d at 708.
The tends-to-connect standard does not present a high threshold. Cook, 460 S.W.3d
at 708–09 (citing Randall v. State, 218 S.W.3d 884, 886 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d); Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin
2002, no pet.)).
      Standing alone, the corroborating evidence need not prove the defendant’s
guilt beyond a reasonable doubt. Malone, 253 S.W.3d at 257; Cook, 460 S.W.3d at
709. To be sufficient, the corroborating evidence must show more than just the
“mere presence” of the defendant at or near the scene of the crime. Malone, 253
S.W.3d at 257; Cook, 460 S.W.3d at 709. However, the corroborating evidence does
not have to directly link the defendant to the crime. Cook, 460 S.W.3d at 709;
Taylor v. State, 328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref’d);
Smith v. State, 211 S.W.3d 476, 478 (Tex. App.—Amarillo 2006, no pet.). Instead,
the corroborating evidence need only tend to connect the defendant to the offense.
Malone, 253 S.W.3d at 258–59; Cook, 460 S.W.3d at 709.              We review the
corroborating evidence in the light most favorable to the verdict. Cook, 460 S.W.3d
at 709, Taylor, 328 S.W.3d at 578; Smith, 211 S.W.3d at 478.
      We disagree with Appellant’s contention that Crawford’s testimony was
uncorroborated. As was the case in Cook, the State offered audio and video
recordings   of    the   three   drug   transactions   where   Crawford   purchased
methamphetamine from Willett, Allen, and Appellant. See Cook, 460 S.W.3d at


                                           7
709–10. These recordings were published to the jury, thereby permitting the jury to
make its own determinations regarding the images and sounds depicted. See id.
(citing Cantelon, 85 S.W.3d at 459–62). Additionally, Detective Taylor searched
Crawford before each transaction to establish that she did not have any drugs in her
possession prior to the transactions. See id. The drugs that Crawford purchased in
three transactions were offered into evidence.          Finally, Willett and Allen
acknowledged that each of them sold Crawford drugs during the first and second
transactions. See Gray v. State, No. 11-16-00358-CR, 2018 WL 6928987, at *4
(Tex. App.—Eastland Dec. 31, 2018, no pet.) (mem. op., not designated for
publication) (holding that accomplice-witness testimony can be used to corroborate
covert-agent testimony.)
      The jury could have rationally found that the corroborating evidence tended
to connect Appellant to both Allen and Willett in a continuing course of criminal
activities to deliver methamphetamine.          Since Crawford’s testimony was
corroborated, the jury could consider her testimony in the same manner as any other
competent evidence. See Castillo v. State, 517 S.W.3d 363, 376 (Tex. App.—
Eastland 2017, pet. ref’d) (citing Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim.
App. 2002)) (dealing with accomplice-witness testimony).          While Crawford’s
testimony about Willett’s participation with Appellant and Allen conflicted with
Willett’s and Allen’s testimony, it was within the province of the jury to resolve
those conflicts, and we defer to the jury’s resolution. See Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. Furthermore, based upon his review of Crawford’s and
Willett’s conversation during the first drug transaction, Detective Taylor opined that
he believed that Willett was working with Allen to sell drugs. This testimony from
Detective Taylor, along with Allen’s acknowledgement that he and Appellant sold
drugs together and Crawford’s testimony that Appellant, Allen, and Willett were


                                          8
selling drugs together, constituted sufficient evidence upon which a rational trier of
fact could have found Appellant guilty of engaging in organized criminal activity as
alleged in the indictment. We overrule Appellant’s second issue.
      In Appellant’s third issue, he contends that the evidence was insufficient to
support his conviction for possession with intent to distribute.           Specifically,
Appellant asserts that the evidence was insufficient to show that Appellant possessed
the 17.46 grams of methamphetamine that was found in the bathtub of the residence
at the time that the police served the search warrant on the house. Appellant relies
on Allen’s testimony claiming ownership of this methamphetamine and Allen’s
testimony that he attempted to hide it in a hole near the bathtub as the police arrived
but that it fell out. Appellant also asserts that the State’s assertion that he possessed
this methamphetamine is “pure speculation.”
      A person commits the offense of possession with intent to deliver a controlled
substance if he knowingly possesses a drug with the intent to deliver it. See HEALTH
& SAFETY § 481.112(a). Possession is defined as “actual care, custody, control, or
management.” PENAL § 1.07(a)(39). To prove unlawful possession of a controlled
substance, the State must show (1) that the accused exercised control, management,
or care over the substance and (2) that the accused knew the matter possessed was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005),
overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 &
n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused’s
connection with the drugs was more than just his fortuitous proximity to someone
else’s drugs. Id. at 405–06. Possession of drugs need not be exclusive; rather,
control over contraband may be jointly exercised by more than one person.
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).




                                           9
      Texas courts have used an “affirmative links” analysis for instances when the
accused was not in exclusive possession of the place where the substance was found.
Poindexter, 153 S.W.3d at 406. In this circumstance, it cannot be concluded that the
accused had knowledge of and control over the contraband unless there are
additional independent facts and circumstances that affirmatively link the accused
to the contraband. Id. (citing Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.
App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)
(listing affirmative links recognized by courts); see also Tate v. State, 500 S.W.3d
410, 413–14 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at 162 n.12). The
following links have been applied to infer knowledge relating to the contraband:
(1) the defendant’s presence when a search was conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the accessibility
of the narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia was present; (11) whether the defendant 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 defendant was found
with a large amount of cash; and (14) whether the conduct of the defendant indicated
a consciousness of guilt. Tate, 500 S.W.3d at 414 (citing Evans, 202 S.W.3d at 162
n.12). It is not the number of links that is dispositive; rather, it is the logical force
of all of the evidence, both direct and circumstantial, that is the determining factor.
Evans, 202 S.W.3d at 162.




                                           10
      Although Appellant was not in exclusive possession of the place where the
drugs were found, the independent facts and circumstances justify the jury’s
conclusion that Appellant had possession of the methamphetamine found in the
bathtub. The State established several affirmative links between Appellant and the
methamphetamine.      Appellant was present when the search of the residence
occurred. Appellant fled the house when the police executed the search warrant.
Detective Taylor testified that the bathtub was in Appellant’s direct path as
Appellant fled the house. Thus, Appellant was in close proximity to the bathtub
where the methamphetamine was found. Additionally, Appellant lived in the
residence and therefore had the right to possess the bathroom where the
methamphetamine was found. The police found several items of paraphernalia
associated with methamphetamine inside the house, including smoking pipes, a
smoking device, packaging materials, and scales. Finally, the evidence we have
previously discussed in connection with Appellant’s conviction for engaging in
organized criminal activity affirmatively linked Appellant to the methamphetamine
found in the bathtub. Based on the evidence affirmatively linking Appellant to the
methamphetamine, a rational jury could have found beyond a reasonable doubt that
Appellant knowingly possessed the methamphetamine found in the bathtub. We
overrule Appellant’s third issue.
                                    Expert Testimony
      In his fourth issue, Appellant contends that the trial court abused its discretion
when it admitted Detective Taylor’s opinion testimony pertaining to his
interpretation of Crawford’s and Willett’s discussions during the first drug buy.
Appellant asserts that the admission of this testimony was erroneous because the
matter at issue was within the knowledge and understanding of the average juror
and, therefore, was not helpful to the jury.


                                           11
      The trial court’s ruling on the admissibility of expert testimony is reviewed
for an abuse of discretion. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App.
2009). The admissibility of expert testimony is governed by Rule 702 of the Texas
Rules of Evidence, which provides that “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue.” TEX. R. EVID. 702.
      At trial, the prosecutor played several portions of the audio recording of the
first controlled buy. The prosecutor asked Detective Taylor to recite the words stated
by both Crawford and Willett during the transaction. Detective Taylor stated that
Crawford asked Willett: “Where is your brother at?” After Willett returned a second
time from the bedroom where Allen and Appellant were located, Crawford asked
Willett: “What did he say?” Crawford later asked Willett: “What can he do for me?
He’s right there?” and “What does your brother have left?” Detective Taylor also
testified that Willett replied at some point: “I don’t know. . . . I’ll see what he’s got.”
      At this point in the questioning, the prosecutor informed the trial court that he
intended to ask Detective Taylor, based on Detective Taylor’s experience as a
narcotics investigator, whether “that conversation indicate[d] that Ms. Willett and
her brother were working in conjunction.” Appellant objected, arguing that the
opinion went to an ultimate issue of the case. The trial court overruled his objection.
The prosecutor then asked Detective Taylor what the conversation between
Crawford and Willett indicated about Willett and Allen. Detective Taylor testified
that it meant that “they were working with one another” and had knowledge of each
other’s drug dealing.




                                            12
      We first note that opinion testimony “is not objectionable just because it
embraces an ultimate issue.” TEX. R. EVID. 704. Appellant asserts on appeal that
Detective Taylor’s opinion was not helpful to the jury “because the matter at issue
was within the knowledge and understanding of the average juror, and the opinion
was therefore not helpful to the jury.” Appellant asserts that Detective Taylor was
offering an opinion on Willett’s veracity with respect to her previous testimony
denying any knowledge of or participation in Appellant’s or Allen’s drug activities.
Assuming Appellant preserved this complaint for appellate review, we conclude that
the trial court did not abuse its discretion by overruling Appellant’s objection to
Detective Taylor’s opinion testimony.
      Expert testimony must aid, not supplant, the jury’s fact-finding role. See
Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Thus, expert testimony
pertaining to the truthfulness of a particular witness is inadmissible under Rule 702.
See Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993). We disagree with
Appellant’s contention that Detective Taylor was offering an opinion about Willett’s
truthfulness. Detective Taylor offered his opinion of the matters discussed during
the first drug transaction between Crawford and Willett.             In this regard,
Detective Taylor’s opinion addressed matters that are not common knowledge of
what jurors already know regarding the manner in which drug transactions are
conducted and discussed. See Morris v. State, 361 S.W.3d 649, 668–69 (Tex. Crim.
App. 2011) (noting that testimony about grooming in a child sexual assault case is
useful to the jury because it is beyond the jury’s common knowledge and
understanding). The trial court could have reasonably determined that Detective
Taylor’s opinion would assist the jury in understanding Willett’s actions and
comments during the first drug transaction. Accordingly, we overrule Appellant’s
fourth issue.


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                                 Jury Charge Error
      In his first issue, Appellant contends that the trial court erred when it denied
his requested instruction with respect to the offense of engaging in organized
criminal activity. At the charge conference, Appellant requested that the trial court
include an instruction that a combination means that there must be more than one
crime or criminal episode. Appellant cited Munoz v. State, 29 S.W.3d 205, 208 (Tex.
App.—Amarillo 2000, no pet.), in support of his request to the trial court. The trial
court denied this request.
      We review a claim of jury charge error using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See State v.
Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016). Our first duty in analyzing
a jury charge issue is to decide whether error exists. Arteaga v. State, 521 S.W.3d
329, 333 (Tex. Crim. App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009)). If error exists, we must determine whether the error caused
sufficient harm to warrant reversal. Id. If a timely objection or request was lodged
at trial, reversal is required if the error resulted in “some harm” to the defendant.
Elizondo v. State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016). Appellant asserts
that he has suffered some harm requiring reversal. Because we conclude that the
trial court’s charge was not erroneous in this case, we do not conduct a harm analysis.
See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)).
      The court in Munoz noted that a continuing course of criminal activity must
encompass more than one crime or criminal episode. 29 S.W.3d at 208 (citing
Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999); Ross v. State, 9 S.W.3d
878, 882 (Tex. App.—Austin 2000, no pet.)). As noted by Appellant, this is a
principle that we have previously noted in Roberson v. State, 311 S.W.3d 642, 648


                                          14
(Tex. App.—Eastland 2010, no pet.) (citing Nguyen, 1 S.W.3d at 697; Smith v. State,
36 S.W.3d 908, 910 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)). Roberson
and Munoz were both cases involving a review of the sufficiency of the evidence for
a conviction for engaging in organized criminal activity.
      Appellant acknowledges that the trial court’s charge tracked the statutory
language for the offense of engaging in organized criminal activity. Specifically,
the trial court’s charge defined “combination” as “three or more persons who
collaborate in carrying on criminal activities.” This definition tracked the applicable
definition in the Penal Code. See PENAL § 71.01(a). Appellant has not cited any
authority that would require an additional instruction, regarding a finding of more
than one crime or criminal episode, to be given for the definition of a combination.
      The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see CRIM. PROC. art. 36.14 (West 2007). A jury
charge that tracks the language of a particular statute is a proper charge. Martinez v.
State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (citing Riddle v. State, 888
S.W.2d 1, 8 (Tex. Crim. App. 1994)) (“Following the law as it is set out by the Texas
Legislature will not be deemed error on the part of a trial judge.”); Duffy v. State,
567 S.W.2d 197, 204 (Tex. Crim. App. 1978); Benn v. State, 110 S.W.3d 645, 648
(Tex. App.—Corpus Christi 2003, no pet.). “Normally, if the instruction is not
derived from the code, it is not ‘applicable law.’” Walters v. State, 247 S.W.3d 204,
214 (Tex. Crim. App. 2007).
      As we previously noted, the trial court instructed the jury on the statutory
definition of “combination.” As noted in Martinez, following the law as set out in
the Penal Code will not be deemed error. 924 S.W.2d at 699. This definition used
the words “criminal activities,” which is indicative of multiple crimes. Further, the


                                          15
trial court’s charge defined “collaborate in carrying on” as “working together with a
specified number of others in specified criminal activities.” Lastly, the application
portion of the court’s charge required a finding that Appellant, Allen, and Willett
performed an overt act in pursuance of an agreement, to-wit: “the delivery and
distribution of methamphetamine on multiple occasions.” Accordingly, the trial
court did not err in denying Appellant’s request for an additional instruction that the
jury was required to find the commission of more than one crime. We overrule
Appellant’s first issue.
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE

August 30, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.



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