
NO. 07-99-0212-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 3, 2001

______________________________


DAVID M. GUTIERREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 98-428743; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.
	Appellant David M. Gutierrez appeals from his conviction for delivery of cocaine by
constructive transfer.  We affirm. 
BACKGROUND
	Department of Public Safety officer Gilbert Arredondo, as part of a "buy-bust" drug
operation, arranged with David Singleterry for Arredondo to purchase one-half of a
kilogram of cocaine.  Singleterry met with Arredondo at Singleterry's home and had
Arredondo show $11,500 in cash which was the agreed-upon purchase price for the
cocaine.  Then Singleterry had Arredondo drive both of them to an apartment where
Singleterry was to obtain the cocaine.  Singleterry went into the apartment alone and
returned with a sample of white powder.  Arredondo then gave Singleterry the $11,500
cash purchase price and Singleterry went back into the apartment while Arredondo waited
in the car.  Singleterry emerged from the apartment, showed a bag which he indicated
contained the cocaine and went around to enter the passenger side of the car.  Arredondo
signaled the other members of the buy-bust team to move in.  Singleterry was arrested
before he actually gave the bag containing cocaine to Arredondo.  
	Arredondo and other officers entered the apartment which Singleterry had been
going in and out of.  In the apartment were a young female named Virginia Lomas to whom
the apartment was leased, her young daughter, two male children from neighboring
apartments, and appellant.  Appellant was located by himself in a bathroom connected to
the master bedroom of the apartment.  When he was located, appellant was on the floor
of the bathroom close to the toilet.  Officers found white powder on the seat of the toilet
and around the base of the toilet.  Ten thousand dollars of the money which had been
given to Singleterry by Arredondo to purchase the cocaine was located scattered on the
bed, the floor and behind a safe in the closet in the bedroom connected to the bathroom. 
Drug paraphernalia was also found in the bedroom.  Singleterry had the remaining $1,500
of the cash given him by Arredondo.
	The sample of white powder first brought out of the apartment by Singleterry, the
material in the bag next brought out by Singleterry, and the white powder found on and
around the toilet next to which appellant was found by the officers all turned out to be
cocaine.  Appellant was indicted for  
	. . . intentionally and knowingly deliver[ing] to GILBERT ARREDONDO a
controlled substance listed in penalty group one, namely cocaine, by
aggregate weight, including adulterants and dilutants, at least four hundred
(400) grams or more, by actually and constructively transferring said
controlled substance . . . .

At trial the State elected to proceed on the constructive transfer charge.  The jury was
charged on delivery by constructive transfer and on possession with intent to deliver, as
a lesser-included crime.  The jury found appellant guilty of constructive transfer. 
Punishment was assessed at 55 years in the Institutional Division of the Texas Department
of Corrections.  
	Appellant challenges his conviction via six issues.  His first three issues challenge
the sufficiency of the evidence.  Issue four asserts that oral statements about the location
of some of the buy money made during a custodial interrogation after his arrest were not
voluntary and should have been suppressed.  His fifth issue seeks remand for the entry
of findings of fact and conclusions of law by the trial court in regard to the voluntariness
of the custodial statement about location of part of the buy money.  Issue six asserts that
the trial court erroneously charged the jury that appellant could be convicted of possession
with intent to deliver the cocaine as a lesser-but-included offense.  We will address the
issues in the order presented.  

ISSUES 1, 2 and 3: 
INSUFFICIENCY OF THE EVIDENCE  
	By his first three issues, appellant contends that the evidence was insufficient to
sustain his conviction for delivery of a controlled substance because (1) the State failed
to show that a delivery of a controlled substance occurred; (2) the State failed to show any
link between appellant and the controlled substance recovered; and (3) the State failed to
show appellant had any knowledge of an ultimate transferee for the controlled substance.
Although he does not specify whether he challenges the legal or factual sufficiency,
appellant's brief cites cases addressing both legal and factual sufficiency.  Therefore, we
will construe appellant's complaint as both a legal and factual insufficiency challenge.
    	When both the legal and factual sufficiency of the evidence are challenged, we
must first determine whether the evidence is legally sufficient to support the verdict. 
Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).  Legally sufficient evidence
supporting a conviction exists if the court, after reviewing the evidence in the light most
favorable to the prosecution, determines that a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443
U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Clewis, 922 S.W.2d at
133; Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991).  All of the evidence
is reviewed, but evidence that does not support the conviction is disregarded.  See, e.g.,
Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). If the legal sufficiency
challenge is sustained, then a judgment of acquittal must be rendered.  Clewis, 922
S.W.2d at 133.
	If the evidence is legally sufficient to support the verdict, we proceed with a factual
sufficiency review.  Clewis, 922 S.W.2d at 133.  In our review, we evaluate all the evidence
without employing the prism of "in the light most favorable to the prosecution."  Id. at 129. 
We consider all of the evidence, comparing evidence that tends to prove the existence of
disputed facts with evidence that tends to disprove such facts.  Santellan v. State, 939
S.W.2d 155, 164 (Tex.Crim.App. 1997).  We should set aside the verdict only when the
factual finding is so against the great weight and preponderance of the evidence as to be
clearly wrong and unjust.  Clewis, 922 S.W.2d at 135.  In doing so, we must be mindful that
the jury is the sole judge of the weight and credibility of witness testimony.  Santellan, 939
S.W.2d at 164.
	Constructive delivery has been defined as a transfer of a controlled substance,
either belonging to the accused or under his control, by some other person or agency, at
the instance and direction of the accused.  Thomas v. State, 832 S.W.2d 47, 51
(Tex.Crim.App. 1992); Roberts v. State, 866 S.W.2d 773, 778 (Tex.App.-Houston [1st Dist.]
1993, pet. ref'd).  In order to prove that appellant delivered the cocaine by constructive
transfer, the State must prove that: (1) prior to the alleged delivery, the transferor had
either direct or indirect control of the controlled substance; and (2) the transferor knew of
the existence of the transferee.  See Daniels v. State, 754 S.W.2d 214, 221-22
(Tex.Crim.App. 1988).  As to the second element, prior to the delivery, the transferor must
be aware of the existence of the ultimate transferee to the extent that he contemplated that
his initial transfer would not be the final transaction in the chain of distribution.  See
Daniels, 754 S.W.2d at 221; Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Crim.App. 
1979).
	When the accused is not in exclusive possession of the place where the contraband
was found, the accused's knowledge of or control over the contraband must be proved by
independent facts and circumstances that affirmatively link appellant to the contraband. 
See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986).  The facts and
circumstances must create a reasonable inference that the accused knew of the controlled
substance's existence and that the accused exercised control over it.  See Dickey v. State,
693 S.W.2d 386, 389 (Tex.Crim.App. 1984).  One independent fact indicating appellant's
knowledge and control of the contraband is location of the contraband in close proximity
to the accused such that it is readily accessible to him.  See Abdel-Sater v. State, 852
S.W.2d 671, 676 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd).   Another independent
fact is if the amount of contraband found is large enough to indicate that the accused knew
of its presence.  See Hill v. State, 755 S.W.2d 197, 201 (Tex.App.--Houston [14th Dist.]
1988, pet. ref'd).  All the facts need not point directly or indirectly to the defendant's guilt;
the evidence is sufficient if the combined and cumulative effect of all the incriminating
circumstances point to the defendant's guilt.  See Russell v. State, 655 S.W.2d 771, 776
(Tex.Crim.App. 1983).
	The evidence showed that Singleterry historically obtained cocaine from a third
party supplier when Arredondo made purchases from him.  Arredondo testified that on
September 14th, Singleterry did not have a large quantity of cocaine before he went into
apartment 127.  Singleterry went into the apartment and returned with a drug sample for
Arredondo.  After receiving $11,500 in cash from Arredondo, Singleterry returned to the
apartment and came back out with what turned out to be over 470 grams of cocaine
including adulterants and dilutants, and, as it turned out, without $10,000 of the buy
money.  Inside the apartment, officers found white powder containing a razor blade, as well
as a set of digital scales in the master bedroom adjoining the bathroom where appellant
was found.  Appellant was found face down near a toilet that had cocaine on the toilet seat
and on the floor around the toilet.  Arredondo testified that in his experience, drug dealers
frequently tried to destroy evidence by flushing it down a toilet when confronted by police
during a drug raid.  No one was in the master bedroom.  The bedroom was connected to
the bathroom where appellant was located, along with cocaine on the toilet.  Because
Singleterry took a drug sample outside, a rational jury could have concluded that whoever
sold the drugs must have been aware that Singleterry was not the final purchaser in the
transaction.  
	When viewed in the light most favorable to the prosecution, the evidence to
affirmatively link appellant to the cocaine which Singleterry brought out of apartment 127
when he left $10,000 of Arredondo's buy money in the apartment is legally sufficient for
a rational trier of fact to have found beyond a reasonable doubt that appellant possessed
or controlled and delivered the cocaine to Singleterry with knowledge that the cocaine was
to go to a third person transferee.  See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89;
Geesa, 820 S.W.2d at 156-57.  The evidence is legally sufficient to support the verdict.
	As to the factual sufficiency of the evidence, appellant did not present any
witnesses at trial to controvert the State's evidence.  The verdict is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis, 922
S.W.2d at 135.  Appellant's first three issues are overruled.	 
ISSUE 4: INVOLUNTARY CUSTODIAL
ORAL STATEMENT
	By his fourth issue, appellant contends that his post-Miranda warning statement
concerning the location of the missing "buy" money being behind the safe in the closet was
not voluntary and should have been suppressed.  He asserts that the statement was the
result of coercive police tactics and a deliberate attempt to compel him into giving up his
previously asserted right to remain silent.  He cites Jackson v. Denno, 378 U.S. 368, 376,
84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) for the proposition that a defendant is deprived of
due process of law if a conviction is founded, in whole or part, on an involuntary
confession.  The State maintains that appellant did not object at trial on the basis that the
statement was involuntary and has, therefore, failed to preserve error.  We agree with the
State.
 To preserve error for appellate review, (1) the complaining party must make a timely
objection specifying the grounds for the objection, if the grounds are not apparent from the
context; (2) the objection must be made at the earliest possible opportunity; and (3) the
complaining party must obtain an adverse ruling from the trial court.  Dixon v. State, 2
S.W.3d 263, 265 (Tex.Crim.App. 1998).  The objection will be sufficient to preserve error
for appellate review if the objection communicates to the trial judge what the objecting
party wants, why the objecting party thinks himself or herself entitled to relief, and does so
in a manner clear enough for the judge to understand the objection and request at a time
when the trial court is in a position to do something about it.  See Lankston v. State, 827
S.W.2d 907, 908-09 (Tex.Crim.App. 1992). As regards specificity, all a party has to do
to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants,
why he thinks himself entitled to it, and to do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something about it.  Id. 
When, however, it appears from the context that a party failed to fairly and effectively
communicate the objection, its basis or the relief sought, then appellate complaint has not
been preserved.  Id.  If the complaint on appeal does not correlate to the objection made
at trial, the complainant has not preserved error.  Tex. R. App. P. 33.1(a); Dixon, 2 S.W.3d
at 265; Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). 
	Appellant's objection in the trial court specifically referenced Article 38.22 of the
Texas Code of Criminal Procedure (1) and focused on whether appellant waived the Miranda
rights which he claimed after Arredondo read them to him.  The issue of appellant's
statement disclosing the location of the missing part of the buy money arose during a voir
dire examination of Arredondo outside the presence of the jury.  The context both of
Arredondo's voir dire examination by the State and cross-examination by appellant's
counsel focused on whether appellant waived his rights in accordance with provisions of
Article 38.22.  Neither the State nor appellant's counsel elicited testimony concerning the
subject of appellant's statement having been coerced.  The trial court specifically
responded to counsel's Article 38.22 objections by referencing Article 38.22 "subsection
C" [sic].  Appellant's counsel did not at any time communicate to the trial judge that a due
process or coerciveness issue was being urged, apart from the specific language of Article
38.22 which counsel focused on.  
	After the trial court overruled appellant's Article 38.22 objection during Arredondo's
voir dire examination, the jury was brought back in.  In front of the jury the State asked
Arredondo about appellant's statement concerning location of the missing money. 
Appellant's counsel objected and specified Article 38.22 as the basis for his objection.  The
trial court overruled the objection.  
	Appellant did not fairly and specifically object to admission of his statement on the
constitutional due process basis he now urges on appeal.  He has not preserved error. 
His fourth issue is overruled.
ISSUE 5: FINDINGS OF FACT TO DETERMINE
VOLUNTARINESS OF STATEMENT
 By his fifth issue, appellant contends that the trial court erred by failing to enter
findings of fact and conclusions of law supporting its admission of appellant's custodial
statement that the missing buy money was under the safe in the bedroom closet.  He
asserts that such error requires abatement and remand for entry of finding of facts and
conclusions.  Appellant argues that Article 38.22, Section 6 requires the trial court to make
findings and conclusions as to whether his statement was voluntary.  
	The State does not contest whether the statement was made when appellant was
in custody. Rather, the State asserts that the trial court complied with Article 38.22, Section
6, because the judge made findings on the record by ruling that appellant's statements led
to the discovery of the buy money. See Article 38.22 § 3(c).  
	We agree with appellant that the trial court was required to enter findings and
conclusions as to whether his statement was voluntary.  We decline to abate the appeal
and remand for entry of findings and conclusions, however, for the reasons set out
hereafter.
	During the hearing on the admissibility of appellant's custodial statement,
appellant's counsel objected to the admissibility of the statement on the basis of Article
38.22, Section 2(b).  The trial court apparently understood the objection to be an objection
under Section 3 dealing with oral statements, as opposed to Section 2 dealing with written
statements, as indicated by the court's ruling:
	The Court:		Well, Subsection C states that Subsection A does not
apply to any statement which contains assertions of
facts or circumstances that are found to be true and
which conduce to establish the guilt of the accused,
such as the finding of property.

	[Defense Counsel]:	I don't have any problems with that part.  I think the
Court is correct as to anything regarding statements
about the safe because they didn't find any money in
the safe.

	The Court:		Well, what I'm talking about is the money that was
found--that was found behind the safe.

	[Defense Counsel]:	Well, that's where my specific objection goes back to
the prior section.

	The Court:		Well, the Court will overrule your objection as to
statements made by the Defendant as to the location of
the remainder of the money.  But we will not go into
anything about him giving the combination to the safe.

	Later, when the custodial statement was addressed by testimony before the jury,
appellant's counsel objected "under 38.22, Section 2, Subsection B, and also under
Section 3, Subsection C(a)."  The objection was overruled.  
	Although appellant's objections were not as precise as they could have been, the
context of the objections and the trial court's responses indicate that the trial court
understood the objection being made to the oral custodial statement.  The issue was
preserved for our review.
	In ruling on the admissibility of a defendant's statement when the issue of
voluntariness is made, the trial court must "enter an order stating its conclusions as to
whether or not the statement was voluntarily made, along with the specific finding of facts
upon which the conclusion was based."  Article 38.22 § 6.  The trial court may comply with
Section 6 by dictating its finding of facts and conclusions of law into the record.  See Lee
v. State, 964 S.W.2d 3, 11-12 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd).  It is
mandatory that the trial court enter its findings and conclusions as to admissibility of a
statement pursuant to Section 6, regardless of whether the defendant objects.  See Green
v. State, 906 S.W.2d 937, 939 (Tex.Crim.App. 1995). 
	Although the trial court stated that Article 38.22 Section 3(c) applied to appellant's
statement, the judge did not address the specific reasons for ruling that the statement was
voluntary.  See Lee, 964 S.W.2d at 11-12; Amunson v. State, 928 S.W.2d 601, 607
(Tex.App.--San Antonio 1996, pet. ref'd).  The application of Section 3(c) relieves the State
of proving compliance with requirements of Section 3(a) such as the recording of an oral
statement.  Section 3(c) does not relieve the trial court from the clear language of Section
6 which specifies that in all cases where a question is raised as to the voluntariness of a
statement of an accused, the trial court must make an independent finding of voluntariness
and enter an order stating its finding of facts and conclusions.  Therefore, the trial court
did not comply with the requirements of Article 38.22 Section 6. 
	Ordinarily, we would abate the appeal and remand the case to the trial court for
entry of the findings and conclusions required by Section 6, as requested by appellant. 
Rather than abate and remand, however, we deem it appropriate in the interest of judicial
economy to assume, arguendo, that admission of the statement in question was in
violation of Article 38.22, regardless of whatever findings and conclusions would be
entered by the trial court, and to perform a harm analysis.  See Davidson v. State, 42
S.W.3d 165, 167 (Tex.App.--Fort Worth 2001, no pet. h.) (on remand). 
 Article 38.22 is a procedural evidentiary rule rather than a substantive exclusionary
rule.  Davidson v. State, 25 S.W.3d 183, 186 (Tex.Crim.App. 2000).  Because of this we
apply appellate rule 44.2(b) and disregard the error if it does not affect the appellant's
substantial rights.  See Tex. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259
(Tex.Crim.App. 1998) (op. on reh'g); Davidson, 42 S.W.3d at 167.  A substantial right is
affected when the error had a substantial and injurious effect or influence on the jury's
verdict.  See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).  We review the
record as a whole to make this determination.  Id. 
 Appellant's statement led the police to recover approximately $1,000 of the missing
buy money from the master bedroom closet.  Approximately $9,000 of the buy money was
found in plain view in the master bedroom, scattered on the bed and floor leading to the
closet.  The bedroom was connected to the bathroom in which appellant was located on
the floor next to the toilet on which cocaine was found.  No one other than appellant was
in the master bedroom or bathroom, and the only other persons in the entire apartment
were a young mother, her two-year old daughter and two neighbor children.  In light of the
evidence and inferences therefrom and the evidence previously discussed in connection
with appellant's first three issues, we conclude that, even assuming error in admitting
appellant's statement, the error was not substantial and injurious, but was slight, at most,
and therefore must be disregarded.  Tex. R. App. P. 44.2(b).  Appellant's fifth issue is
overruled. ISSUE 6: INCLUSION IN JURY CHARGE
OF LESSER INCLUDED OFFENSE
	Appellant's sixth issue asserts that the trial court erred in charging the jury on and
in allowing conviction for possession of cocaine with intent to deliver as a lesser included
offense.  However, the jury did not convict appellant of possession with intent to deliver. 
Appellant has not briefed or argued how he was harmed by the jury charge when he was
not convicted on the allegedly erroneously-charged crime.  
	Without substantive argument or supporting authorities, an issue cannot be
adequately evaluated, and will be overruled.  Lagrone v. State, 942 S.W.2d 602, 614
(Tex.Crim.App. 1997).  Moreover, we perceive no harm to appellant by inclusion of a
charge for which he was not convicted.  See Tex. R. App. P. 44.2(b).  We overrule issue
6.
CONCLUSION
	Having overruled appellant's six issues, we affirm the judgment of the trial court.  
  
								Phil Johnson
								    Justice


Publish.


1. Tex. Crim. Proc. Code Ann. art. 38.22 (Vernon 1979).  Further references to the
Code of Criminal Procedure will be by reference to "Article_." 

