                            NUMBER 13-11-00595-CR

                               COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


LAWRENCE BENNY BROWN JR.,                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      Appellant, Lawrence Benny Brown Jr., raises two issues in his appeal from a life

sentence for a conviction for the first-degree felony offense of possession with intent to

deliver a controlled substance (specifically, cocaine) in an amount, including adulterants

and dilutants, greater than or equal to 4 grams but less than 200 grams. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010); TEX. PENAL CODE ANN. §

12.32 (West 2011). We affirm.
                                           I. BACKGROUND

        Appellant pleaded guilty without a plea agreement, and the trial court accepted

the plea. During the punishment hearing, the State offered evidence of an extraneous

offense, which appellant allegedly committed while he was out on bond pending trial in

the instant matter.      The extraneous offense, which the trial court found to be true

beyond a reasonable doubt, involved appellant firing a number of gunshots into a home

where his estranged wife was staying with several other individuals, including a child. In

assessing punishment, the trial court told appellant: “I admire you for owning up and

pleading guilty, but I have to determine the appropriate punishment in this case to be life

in the state penitentiary.”

                                             II. ANALYSIS

        A. Legal Sufficiency of the Evidence

        In its first issue, appellant challenges the legal and factual sufficiency of the

evidence to support his conviction.1

        1.      Standard of Review

        Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899-99 (Tex.

Crim. App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering


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             Having concluded that “no meaningful distinction” exists between a factual-sufficiency and
legal-sufficiency standard, the court of criminal appeals has held that the Jackson standard is the “only
standard that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”
Brooks v. State, 323 S.W.3d 893, 893-903 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we address appellant’s legal and factual sufficiency
challenges as one challenge under the Jackson standard.

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all of the evidence in the light most favorable to the verdict, was a jury rationally justified

in finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of

the credibility of witnesses and of the weight to be given to their testimony. Anderson v.

State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).                 Reconciliation of

conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies

in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000)).

       In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not

point directly and independently to the appellant’s guilt, so long as the cumulative effect

of all the incriminating facts is sufficient to support the conviction. Id.

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

307 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).



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       2.     Applicable Law

       Under Texas law, a defendant’s guilty plea does not prove up the guilt of the

defendant where the jury has been waived. Brink v. State, 78 S.W.3d 478, 484 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d). Accordingly, questions regarding both the

sufficiency and admissibility of the State’s evidence remain at issue after the plea. Id.

The State can satisfy its burden of proof and support the plea in various ways. The two

chief methods of supporting a plea are by the introduction of (1) stipulated evidence or

(2) a judicial confession. Id.

       3.     Discussion

       Under a hypothetically correct jury charge, the State was required to prove that

appellant possessed with intent to deliver a controlled substance (specifically, cocaine)

in an amount, including adulterants and dilutants, greater than or equal to 4 grams but

less than 200 grams.       See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d).

Appellant contends that the State failed to meet this burden because the only evidence

proved appellant possessed cocaine in the amount of 0.47 grams.          In making this

argument, appellant relies on the following exchange, which occurred during trial, in

which there was no mention of the adulterants and dilutants contained in the substance:

       [The State]: And do you, further, agree and stipulate, if Amy Arellano,
                    with the Department of Public Safety were called to testify
                    truthfully, under oath, that the substance contained cocaine
                    of 0.47 grams?

       [Appellant]: Yes, sir.

       Although appellant contends that the foregoing is the only evidence of his guilt,

the record also includes the following stipulations:




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       [The State]: [D]o you, [appellant], along with your attorney, agree and
                    stipulate if Jason Stover, with the Victoria Police
                    Department, were called to testify, he would testify truthfully
                    and under oath that you, [appellant], on or about the 10th
                    day of October, 2009, in the County of Victoria and State of
                    Texas, you did then and there knowingly possess, with intent
                    to deliver, a controlled substance, namely, cocaine, including
                    adulterants and dilutants, in an amount of four grams or
                    more but less than 200 grams? Do you agree and stipulate
                    that that would be his testimony?

       [Appellant]: Yes, sir.

                     ...

       [The State]: Do you, further, agree and stipulate all acts and allegations
                    contained in count one . . . are true and correct?

       [Appellant]: Yes, sir.

We conclude that the foregoing evidence is sufficient to establish the essential elements

of the offense. Accordingly, appellant’s first issue is overruled.

       B. Punishment Outside Statutory Range

       In his second issue, appellant incorporates his first issue and contends that his

life sentence is void because it exceeds the statutory range of punishment (180 days to

two years) for possession of less than one gram of a controlled substance, a state jail

felony offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b); TEX. PENAL CODE

ANN. § 12.35(a) (West Supp. 2011). We have considered and overruled appellant’s first

issue and our disposition of appellant’s first issue renders the complaint raised in his

second issue moot. We note that the punishment assessed by the trial court is within

the punishment range for a first-degree felony offense. See TEX. PENAL CODE ANN. §

12.32. Accordingly, appellant’s second issue is overruled.




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                                    III. CONCLUSION

      The judgment of the trial court is affirmed.

                                                      _________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of August, 2012.




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