                                 NO. 07-07-0498-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL C

                                MARCH 13, 2009
                        ______________________________

                               CARL WAYNE HORNE,

                                                            Appellant

                                          v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

               NO. 54,538-E; HON. RICHARD DAMBOLD, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

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

      Carl Wayne Horne was convicted of two counts of engaging in organized criminal

activity, that is, he was engaged with others in the sale of controlled substances or

methamphetamine. He contends those convictions should be reversed because 1) the

evidence is factually insufficient to sustain the convictions, 2) there is insufficient

independent evidence to corroborate the testimony of the accomplice witnesses, and 3)

he received ineffective assistance of counsel. We disagree and affirm the convictions.
        Issue 2 - Accomplice Witness Testimony

        We address issue two first. Therein, appellant argues that there was insufficient

evidence to corroborate the testimony of the accomplice witnesses. We overrule the issue.

        A conviction cannot be based upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the accused with the offense

committed. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005). Appellant argues that

only the testimony of Ann Marie Adkins linked him to the agreement to sell drugs and that

there is no other evidence to corroborate her comments. Yet, a taped conversation

admitted into evidence belies that. In the taped phone conversation he is heard explaining

to someone else his involvement. That is, he informed the listener that 1) he wanted to

“get out” for the last two months but that there was “always somebody else,” 2) “people

owed [him] so much damn money,” and 3) he was not addicted but “caught up in the

money of it.”1 These admissions were enough to connect the accused to the crime.

        Issue 1 - Sufficiency of the Evidence

        In this issue, appellant challenges the factual sufficiency of the evidence. We

overrule the point.

        To obtain a conviction for engaging in organized crime, the State had to prove that

the accused 1) with intent to establish, maintain, or participate in a combination or in the

profits of a combination, 2) committed or conspired to commit one or more predicate




        1
          The phone conversation was one of about 41 appearing on a com pact disk m arked exhibit 138.
Though the State generally referred to that conversation and exhibit in its appellate brief, it did not specify the
particular phone conversation in which the adm issions appeared. So, each conversation was heard. In the
future, we would request litigants in sim ilar situations to expressly designate where pertinent evidence appears
of record. That would further judicial efficiency.

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offenses. TEX . PEN . CODE ANN . §71.02(a) (Vernon Supp. 2008). The word “combination”

is defined as

       three or more persons who collaborate in carrying on criminal activities
       although . . . 1) [the] participants may not know each other’s identity; 2)
       membership in the combination may change from time to time; and 3) [the]
       participants may stand in a wholesaler-retailer or other arm’s-length
       relationship in illicit distribution operations.

Id. §71.01(a) (1), (2), & (3) (Vernon 2003). This definition has been interpreted to obligate

the State to prove not only that the accused intended to establish, maintain, or participate

in a group of three or more but also that the members of the group intended to work

together in a continuing course of criminal activities. Dowdle v. State, 11 S.W.3d 233, 236

(Tex. Crim. App. 2000). Furthermore, “conspiring to commit” means that a person agrees

with one or more persons that they or one or more of them engage in conduct that

constitutes the offense and that person or one or more of them performs an overt act in

pursuance of the agreement. TEX . PEN . CODE ANN . §71.01(b) (Vernon 2003). Such an

agreement may be inferred from the acts of the parties. Id.

       Here, the persons other than appellant named in the combination were Anthony

Drager (Drager), Darlene Shepic (Shepic), Bobby Russell (Russell), Crystal Drager

(Crystal), and Ann Marie Adkins (Adkins).           Appellant concedes that there was

overwhelming evidence that Drager was involved in the sale and trafficking of drugs, but

claims there was no evidence that he was involved in Drager’s business or criminal activity.

       Admittedly, the credibility of the persons alleged to have been involved in the

conspiracy as well as other persons who bought drugs from Drager was in dispute.

However, there was evidence that 1) Kristopher Compton saw appellant at Drager’s

several times and inferred appellant was either buying or selling methamphetamine from

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negotiations that he overheard, 2) Compton also saw appellant pick up a bag of what he

believed to be a couple of grams of methamphetamine from Drager’s kitchen table, 3) Lisa

Bailey heard Drager discuss appellant in reference to getting money to pay appellant and

she believed that to be for drugs, 4) Jason Roberts testified that Drager made reference

to having to meet up with “Carl” (appellant’s first name) to get his supply of

methamphetamine, 5) Shepic, Drager’s sister, testified that appellant used to sell

methamphetamine to her brother and then later her brother sold methamphetamine to

appellant, 6) Shepic would overhear appellant and Drager talking about as much as a

quarter ounce up to a quarter pound of methamphetamine and she stated there was an

agreement between them to distribute methamphetamine, 7) Crystal gave a statement in

which she said that appellant would get an ounce of “ice” every couple of days from

Drager, 8) Adkins testified that appellant sold drugs with Drager, would get drugs everyday

from Drager, and delivered drugs to Dalhart and other places, 9) Adkins testified that drug

transactions involving her, Shepic, Russell, and appellant all benefitted Drager because

the money flowed up, and 10) Agent Bill Redden testified that he listened to telephone calls

made by Drager in jail, and he stated that Drager said that the police were trying to shut

him and Carl down and Drager gave instructions for Carl to collect debts. Nor can we

forget appellant’s own admissions cited in issue one above; he was “caught up in the

money of it” and many people owed him money.

       Any conflicts in the testimony regarding appellant’s guilt were for the jury to resolve.

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jurors were free to

believe the foregoing evidence which, in turn, was enough to insulate the verdict from any

attack founded upon the factual sufficiency of the evidence. Simply put, the verdict was

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neither founded on weak evidence nor evidence overwhelmed by exculpatory testimony.

Thus, it was not manifestly unjust.

       Issue 3 - Ineffective Assistance of Counsel

       Finally, appellant claims his counsel was ineffective in failing to object to the

indictment. We overrule the issue.

       To prevail on such a claim, appellant had the burden to prove not only that his

counsel’s performance was deficient but that he was prejudiced by that deficient

performance. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). Both

prongs of the test must be firmly founded in the record. Id. at 813.

       In the first count of the indictment, the predicate offense was possession with intent

to deliver methamphetamine. Appellant argues that the indictment should have alleged

that appellant committed or conspired to commit unlawful possession of a controlled

substance “through forgery, fraud, misrepresentation, or deception.” See TEX . PEN . CODE

ANN . §71.02(a)(5) (Vernon Supp. 2008) (stating that a person commits an offense 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 unlawful manufacture, delivery,

dispensation, or distribution of a controlled substance or dangerous drug, or unlawful

possession of a controlled substance or dangerous drug through forgery, fraud,

misrepresentation, or deception). Because it did not, according to appellant, the indictment

did not allege an offense under the statute and appellant’s counsel should have objected.




                                             5
       The argument that the indictment should have included the missing passage was

rejected in Utsey v. State, 921 S.W.2d 451, 457 (Tex. App.–Texarkana 1996, pet. ref’d).

The argument having been rejected, trial counsel was not obligated to tilt at windmills by

including it in a motion to dismiss to be effective.

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



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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