                                  NO. 07-01-0306-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 AUGUST 13, 2003
                         ______________________________


                          LEE EDWARD BOOTEN,
               AKA LEE EDWARD TURNER AKA QUICK, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

             FROM THE 155TH DISTRICT COURT OF WALLER COUNTY;

               NO. 00-07-10,291; HONORABLE MARY BACON, JUDGE

                        _______________________________

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


                               MEMORANDUM OPINION


      Appellant Lee Edward Booten appeals from his conviction for delivery of a controlled

substance. He urges that the evidence is factually insufficient to support the conviction.

We affirm.
       On April 12, 2000, Officer Michael Chaney, a reserve officer with the City of

Brookshire Police Department, and Officer Lisa Gartman, met Pam Collins at a motel in

Hempstead, Texas. Gartman had purchased drugs from Collins earlier in the day.


       Chaney and Gartman, both working undercover, told Collins that they wanted to buy

some crack cocaine. Collins told Chaney and Gartman that she knew where to buy some

crack, and Collins and Chaney left the motel together. Collins directed Chaney to drive to

appellant’s address. When they arrived, Chaney gave Collins $100 and Collins went up

to appellant in the driveway of the residence. Chaney testified that he watched from his

vehicle while Collins handed money to appellant and appellant handed something back to

Collins. According to Chaney, Collins then returned to the car, handed the crack cocaine

to him, and asked for some in exchange for setting up the buy. Chaney refused to give

Collins any of the cocaine, but Gartman gave her $20 when Chaney and Collins returned

to the motel.


       Collins testified that after Chaney dropped her off at appellant’s residence, he left

in the vehicle. According to Collins, she and appellant went inside the garage and behind

a car where she exchanged money for cocaine. She then returned to the car in which she

and Chaney drove to appellant’s house, gave the cocaine to Chaney, asked for some of

the drugs, and her request was refused by Chaney. She agreed with Chaney’s testimony

that she and Chaney then returned to the motel where Gartman gave her $20. She was

later indicted for the transaction, pled guilty to delivery of a controlled substance, and was

serving time for her conviction at the time of appellant’s trial.



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       Appellant was indicted in Waller County for delivery of a controlled substance in the

amount of one gram or more but less than four grams. He was convicted and sentenced

to ten years incarceration.


       Appellant appeals the conviction via one issue which urges factual insufficiency of

the evidence. He urges that the evidence is uncontroverted that Collins was not searched

before or after the alleged transaction with appellant and the State failed to introduce

corroborating evidence connecting appellant to an offense independent of the testimony

of Collins, who was an accomplice witness. He concludes first that absent independent

corroborating evidence, he cannot be convicted on the testimony of Collins; and second,

that the State has not overcome his alternative reasonable hypothesis presented by the

proof that Collins was not searched before the alleged transaction and might have been

in possession of the cocaine before she met appellant.


        The State’s response is twofold. First, the State asserts that Chaney’s testimony

as to how the transaction occurred is independent evidence corroborating Collins’

testimony. Second, the State cites Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991)

as overruling the “alternative reasonable hypothesis” analytical construct for testing

sufficiency of the evidence.


       Review of the evidence in a criminal case for factual sufficiency to support a

conviction entails a neutral review of all the evidence, both for and against the finding. The

evidence is factually insufficient if such a review demonstrates that (1) the proof of guilt,

standing alone, is too weak to support a finding of guilt, or (2) the proof of guilt, although


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adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State,

23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When the verdict is in favor of the party with the

burden of proof, as in this matter, the verdict and judgment may only be set aside for

factual insufficiency if the entire record shows that evidence supporting the jury’s finding

is so weak as to be clearly wrong and manifestly unjust. Id. It is within the province of the

jury to consider the demeanor and credibility of the witnesses in weighing conflicting

testimony. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). Unless the

record clearly reveals that a different result is appropriate, an appellate court must defer

to the fact-finder’s determination concerning what weight to give contradictory testimonial

evidence because resolution often turns on an evaluation of credibility and demeanor,

which is primarily a determination to be made by observation of the witnesses giving the

testimony. See Johnson, 23 S.W.3d at 8.


       The State and appellant agree, and the jury was charged, that Collins was an

accomplice witness. See TEX . CRIM . PROC . CODE ANN . art. 38.14 (Vernon 1981). As such,

her testimony is not sufficient evidence for conviction unless it is corroborated. If, after

eliminating the accomplice witness’ testimony, the remaining evidence tends to connect

the accused with commission of the offense, then the evidence is sufficient corroboration.

See McDuff v. State, 943 S.W.2d 517, 521 (Tex.App.–Austin 1997, pet.ref’d).


       The State points to Officer Chaney’s testimony as corroboration evidence. Chaney

testified that he watched from an automobile as Collins and appellant conducted a

transaction in which Collins handed money to appellant and appellant handed something



                                             4
to Collins. Collins then returned to the car where Chaney was waiting and handed crack

cocaine to Chaney.


       Chaney’s testimony differed from that of Collins as to whether he drove off after

dropping Collins off at appellant’s house, or whether he stayed and watched the

transaction. The conflict was for the jury to resolve, however. We respect the jurors’

decision. See Cain, 958 S.W.2d at 408-09.


       Chaney’s testimony was evidence tending to connect appellant with the transaction.

It was sufficient to corroborate Collins’ accomplice witness testimony. See McDuff, 943

S.W.2d at 521-23. And, a decision is not manifestly unjust merely because the jury

resolved conflicting views of the evidence in favor of the State. See Cain, 958 S.W.2d at

410.


       As to appellant’s assertion that the State’s evidence did not overcome the

alternative reasonable hypothesis presented by the evidence, we note that the Court of

Criminal Appeals rejected the reasonable alternative hypothesis construct as a measure

of legal sufficiency in circumstantial evidence cases. See Geesa, 820 S.W.2d at 161. The

Court has not rejected the construct in factual sufficiency analyses. See Wilson v. State,

7 S.W.3d 136, 141 (Tex.Crim.App. 1999). But, the construct is not determinative of the

factual sufficiency issue. It is only a factor to be considered. Id. When we consider such

factor, we defer to the jury’s choice between competing theories which are supported by

evidence. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). The

existence of a reasonable alternative hypothesis does not render the evidence factually


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insufficient. See Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.--Dallas 1998, no

pet.).


         The jury resolved the issues of credibility in favor of the State’s position, and against

appellant’s construct urging that Collins brought the crack cocaine with her to the meeting

with appellant. Such resolution does not render the evidence factually insufficient. We

conclude that the proof of guilt, standing alone, is not too weak to support a finding of guilt,

nor that the proof of guilt is greatly outweighed by contrary proof.


         The evidence is factually sufficient to support the verdict. See Johnson, 23 S.W.3d

at 11. Appellant’s sole issue is overruled. The judgment is affirmed.




                                                            Phil Johnson
                                                            Chief Justice


Do not publish.




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