                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00053-CR


Juan Salgado Ortega a/k/a Juan            §   From Criminal District Court No. 3
Salgado
                                          §   of Tarrant County (1245362D)

                                          §   March 21, 2013
v.
                                          §   Opinion by Justice Gardner

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Anne Gardner
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00053-CR


JUAN SALGADO ORTEGA A/K/A                                           APPELLANT
JUAN SALGADO

                                        V.

THE STATE OF TEXAS                                                       STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

      Appellant Juan Salgado Ortega appeals his conviction following a jury trial

for possession with intent to deliver a controlled substance. See Tex. Health &

Safety Code Ann. § 481.112(a) (West 2010). Appellant raises one issue, arguing




      1
      See Tex. R. App. P. 47.4.


                                         2
that the evidence is insufficient to support his conviction because the testimony

of the informant was not adequately corroborated. We affirm.

                                II. Trial Testimony

       Miguel Mendoza testified that he worked as a confidential informant for

several law enforcement agencies. He testified that he first heard of Appellant

having methamphetamine connections in 2011 and that he contacted Officer

Mike Bali of the Arlington Police Department, seeking approval to meet with

Appellant.   Mendoza subsequently met with Appellant at Appellant’s place of

work, a grocery store and restaurant called El Ahorro, sometime in the summer

of 2011. Mendoza testified that he thereafter went with Appellant to Appellant’s

apartment to see the methamphetamine. Appellant made a phone call upon their

arrival, after which three men arrived and showed Mendoza what he believed to

be methamphetamine. Mendoza testified that Appellant wanted to do the drug

deal in the apartment.     Mendoza said that he left the apartment to talk with

Officer Bali, leaving Appellant behind. Mendoza testified that he only had the

phone number of Appellant and did not have contact information for the other

men.

       Mendoza testified that he then, at Officer Bali’s request, called Appellant to

change the location of the deal to the El Ahorro parking lot. Appellant, along with

the three men, went back to El Ahorro to make the deal. Mendoza testified that,

back in the El Ahorro parking lot, he notified Officer Bali that the

methamphetamine was present after one of the three men told him that it was in


                                          3
the truck. Appellant then went inside El Ahorro. Mendoza testified that he left

the parking lot and called Appellant to move the deal down the block, again at

Officer Bali’s request. Appellant called Mendoza back and said that the three

men would meet down the block. Mendoza testified that the phone call from

Appellant was the last time he talked with Appellant.

      On cross-examination, Mendoza testified that Appellant never said that he

had the drugs but that his friends had the drugs. Mendoza testified that when

one of the three men told him in the El Ahorro parking lot that the drugs were

present, Appellant was standing next to Mendoza. Mendoza also testified that

Appellant told him that he made a profit from this deal.

      Officer Ray Morales testified that Officer Bali contacted him for assistance

in conducting a traffic stop of a suspected drug dealer. Officer Morales testified

that he found the described vehicle, a silver Ford F150, in the parking lot of El

Ahorro and that when the vehicle left the parking lot, he and another officer

stopped the vehicle. Officer Morales testified that three individuals were in the

truck and that officers found drugs in the truck. On cross-examination, Officer

Morales testified that Appellant was not in the truck when he stopped it, nor did

Appellant own it.

      Officer Mike Bali testified that he had worked with Mendoza on several

occasions and believed him to be reliable and that Mendoza could accurately

identify methamphetamine. Officer Bali testified that he met with Mendoza about

Appellant’s methamphetamine connection a few days before Mendoza was


                                         4
scheduled to meet with Appellant. Officer Bali also testified that he met with

Mendoza on the day Mendoza was going to meet Appellant and that he placed a

listening device on Mendoza so that he and three other officers could hear what

was going on. Officer Bali said that he followed Mendoza to El Ahorro, where

Mendoza met with Appellant. Officer Bali testified that he saw Mendoza with

Appellant at El Ahorro.

       Officer Bali testified that after Mendoza met with Appellant at El Ahorro,

Mendoza called him and said that Appellant wanted them to go to a different

location. Officer Bali told Mendoza to go with Appellant. Officer Bali testified that

he followed Mendoza and Appellant to an apartment complex and that another

detective was in place to see Mendoza go into an apartment with Appellant.

Officer Bali testified that Mendoza left the apartment and called him, telling him

that three other men had shown Mendoza a kilogram of methamphetamine and

that the men and Appellant wanted to make the deal at the apartment complex.

Officer Bali testified that he directed Mendoza to tell Appellant and the men to

make the deal at El Ahorro.

       Officer Bali testified that Appellant went back to El Ahorro in his blue

Dodge Durango, with a silver F150 following “right behind him.” Officer Bali said

that he saw Mendoza, Appellant, and the three men meet in the parking lot and

that   Mendoza,    after   going   to   the   F150,   signaled   that   he   saw the

methamphetamine. Officer Bali testified that Mendoza left the parking lot and

that he directed Mendoza to “call them back” and move the deal down the street.


                                          5
Officer Bali testified that he watched as Appellant went inside El Ahorro and as

the other three men drove away in the silver F150. Officers stopped the silver

F150, arrested the three individuals inside the truck, and subsequently arrested

Appellant   inside   El   Ahorro.      Officer   Bali   testified   that   he   seized

methamphetamine from the truck.2

      On cross-examination, Officer Bali testified that the methamphetamine was

at the apartment while Mendoza was there, but he did not know who brought it

there. Officer Bali also testified that when the three men left the parking lot of El

Ahorro to make the deal and were subsequently arrested, Appellant was not with

them. He also agreed that he found no drugs in Appellant’s apartment in a

subsequent search. Officer Bali testified that, at the time of Appellant’s arrest,

Appellant did not have methamphetamine in his possession, but he later clarified

that he knew that the legal meaning of possession included custody and

management.

                             III. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.



      2
       Sarah Skyles, a senior forensic chemist, later testified that the substance
taken from the silver Ford F150 was tested and found to be methamphetamine.


                                         6
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct.

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

                                 IV. Discussion

      In his sole issue, Appellant contends that the evidence is insufficient to

support his conviction because there is insufficient evidence to corroborate

Mendoza’s informant testimony.




                                        7
A. Applicable Law

         An individual commits an offense under health and safety code section

481.112(a) if the individual “knowingly . . . possesses with intent to deliver a

controlled substance listed in Penalty Group 1.” Tex. Health & Safety Code Ann.

§ 481.112(a).3 Appellant does not contest the individual elements of the crime,

only the sufficiency of the evidence connecting him to the commission of the

crime.

         Convictions under health and safety code section 481 must comply with

code of criminal procedure article 38.141, which states:

                (a) A defendant may not be convicted of an offense under
         Chapter 481, Health and Safety Code, on the testimony of a person
         who is not a licensed peace officer or a special investigator but who
         is acting covertly on behalf of a law enforcement agency or under
         the color of law enforcement unless the testimony is corroborated by
         other evidence tending to connect the defendant with the offense
         committed.

                (b) Corroboration is not sufficient for the purposes of this
         article if the corroboration only shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. § 38.141(a), (b) (West 2005). The court of

criminal appeals held in Malone that this language is substantially similar to the

language of Article 38.14, which covers the accomplice-witness standard for

corroboration.4     Malone v. State, 253 S.W.3d 253, 257–58 (Tex. Crim. App.


         3
         Penalty Group 1 includes methamphetamine.          Id. § 481.102(6) (West
2010).
         4
       “A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense

                                           8
2008); see Tex. Code Crim. Proc. Ann. art. § 38.14. Thus, the same standard for

evaluating sufficiency of the evidence applies to both informant testimony and

accomplice testimony. Malone, 253 S.W.3d at 258. This standard requires that,

to corroborate accomplice testimony, some amount of non-accomplice evidence

must tend to connect the defendant to the commission of the crime in some way.

Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (holding that there

must be “some non-accomplice evidence tending to connect the defendant to the

offense”), cert. denied, 552 U.S. 1232 (2008). The non-accomplice evidence

need not, however, be sufficient by itself to convict the defendant beyond a

reasonable doubt. Malone, 253 S.W.3d at 257; Joubert, 235 S.W.3d at 731.

      Applying this standard, the court in Malone “eliminate[d] the accomplice

testimony from consideration and then examine[d] the remaining portions of the

record to see if there [was] any evidence that tend[ed] to connect the accused

with the commission of the crime.” 253 S.W.3d at 257 (quoting Solomon v.

State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The court further held that

the remaining evidence must “simply link the accused in some way to the

commission of the crime.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim.

App. 2009) (quoting Malone, 253 S.W.3d at 257).




committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.” Tex. Code Crim. Proc. Ann. art. § 38.14 (West
2005).


                                       9
      While a defendant’s mere presence at the scene of the crime is insufficient

to link the defendant to the commission of the crime, a defendant’s presence,

coupled with other suspicious circumstances, can be sufficient to tend to connect

a defendant to the commission of the crime. Malone, 253 S.W.3d at 257 (citing

Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993), and Brown v.

State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Suspicious circumstances

may include the defendant being in the company of the accomplice near the time

of the offense. Brown, 672 S.W.2d at 489 (holding that the “appellant’s presence

with the accomplice witness shortly before the commission of the offense” is a

suspicious circumstance); LeBlue v. State, No. 03-08-00278-CR, 2010 WL

2540490, at *4 (Tex. App.—Austin June 24, 2010, pet. ref’d) (mem. op., not

designated for publication) (citing Killough v. State, 718 S.W.2d 708, 711 (Tex.

Crim. App. 1986)). Moreover, police observations can sufficiently connect the

defendant with the offense. See Malone, 253 S.W.3d at 258–59 (holding that the

officer’s enlistment of informants, following the informants to the location of the

drug deal, watching the informants interact with the defendant, and then seizing

drugs from the informants that they did not have before, was sufficient evidence

to corroborate); Herron v. State, Nos. 01-04-00640-CR, 01-04-00641-CR, 2005

WL 1646043, at *5 (Tex. App.—Houston [1st Dist.] July 14, 2005, pet. ref'd)

(mem. op., not designated for publication) (holding that police watching the

appellant drive a separate car “in tandem” with the vehicle that contained drugs




                                        10
and then stand next to the vehicles during the drug deal was sufficient

corroborating evidence).

      Additionally, when there are conflicting views of the evidence, appellate

courts should defer to how the fact-finder viewed the evidence. Simmons, 282

S.W.3d at 508 (holding that “when there are two permissible views of the

evidence (one tending to connect the defendant to the offense and the other not

tending to connect the defendant to the offense), appellate courts should defer to

that view of the evidence chosen by the fact-finder”). Thus, if a “rational fact-

finder could conclude that the non-accomplice [or non-informant] evidence tends

to connect [the] appellant to the offense,” the appellate court should hold that the

evidence is sufficient to corroborate the accomplice or informant testimony. Id. at

509 (internal quotations omitted).

B. Analysis

      Appellant argues that the non-informant evidence is insufficient to

corroborate Mendoza’s informant testimony because it does not tend to connect

Appellant to the crime.      We therefore set aside Mendoza’s testimony to

determine whether the remaining evidence tends to connect Appellant to the

crime. See Malone, 253 S.W.3d at 257 (holding that the court must eliminate the

accomplice testimony and determine if the remaining evidence tends to connect

the accused with the commission of the crime). If any of this remaining evidence

tends to connect Appellant to the offense, it is sufficient to corroborate

Mendoza’s testimony. See Simmons, 282 S.W.3d at 508–09 (holding that non-


                                        11
accomplice testimony “must simply link the accused in some way to the

commission of the crime”); Joubert, 235 S.W.3d at 731 (holding that “some non-

accomplice evidence [must tend] to connect the defendant to the offense”).

      Setting aside Mendoza’s testimony, the remaining evidence shows that

Officer Bali had previously used Mendoza as an informant on several occasions.

He saw Mendoza with Appellant at El Ahorro and followed them to an apartment

complex. After Officer Bali directed Mendoza to change the location of the drug

deal from the apartment to the El Ahorro parking lot, he watched as Appellant

returned to El Ahorro, the silver F150 containing the drugs following “right

behind.” At El Ahorro, Officer Bali watched as Appellant met with Mendoza and

the three men and as Appellant stood by when Mendoza signaled the drugs were

present. Officer Bali directed Mendoza to move the deal to a location down the

street, after which he watched as Appellant went inside El Ahorro and as the

silver F150 drove toward the new location. Officers stopped the truck and seized

methamphetamine.

      In Malone, a narcotics investigator used two informants to purchase crack

cocaine from Malone. 253 S.W.3d at 255. The investigator followed them to

Malone’s house, watching them along the way. Id. The investigator watched the

informants interact with Malone outside of Malone’s house and subsequently go

inside with him. Id. After an hour and twenty minutes, the informants left the

house, returned to the police station, and the investigator found that both

informants had several “cookies” of crack. Id. The court of criminal appeals held


                                       12
that the investigator’s observations corroborated the informants’ testimony

because “[t]aken as a whole, the non-covert agent evidence shows more than

mere presence.       The jury could have rationally found that the corroborating

evidence sufficiently tended to connect Malone to the delivery of the crack

cocaine.” Id. at 259. In Herron, police observed Herron at the house where the

drugs were and where the drug deal was supposed to happen.                 2005 WL

1646043, at *1. An undercover officer changed the location of the drug deal from

the house to a gas station. Id. Police watched as Herron drove from the house

to the gas station “in tandem” with the vehicle the drugs were in. Id. at *4. At the

gas station, police saw Herron get out and stand next to his car as the drug deal

took place, “but [he] did not pump gas or go toward the store.” Id. The court held

that the police observations, “considered in their entirety, are sufficient to tend to

connect appellant with the offense committed.” Id. at *5.

      Here, the collective police observations of Appellant tend to connect him to

the crime, namely his many interactions with Mendoza and his travel from one

location to another each time Officer Bali directed Mendoza to change the place

for the drug deal.     See Malone, 253 S.W.3d at 259 (holding that the police

observations of informants interacting with Malone, going in his house with him,

and the informants having crack after leaving, taken as a whole, showed more

than mere presence and, therefore, could have tended to connect Malone to the

crime); Herron, 2005 WL 1646043, at *4–5 (holding that police observations of

Herron being at the original location of the drug deal, driving in tandem with the


                                         13
drugs to a new drug deal location, and then standing by while the drug deal took

place, considered in their entirety, were sufficient to tend to connect Herron to the

crime).   Additionally, Appellant’s presence with Mendoza throughout is itself

suspicious. See Brown, 672 S.W.2d at 489 (holding that being in the company of

the accomplice near the time of the offense is a suspicious circumstance).

      Appellant argues that Officer Bali’s testimony does not tend to connect him

to the crime because Officer Bali does not speak Spanish, meaning that Officer

Bali did not understand the conversations he heard over Mendoza’s listening

device. Nevertheless, Officer Bali’s testimony places Appellant near the scene of

the crime, in the informant’s company, and traveling to a new drug deal location

in tandem with the drugs. Considered together, this evidence tends to connect

Appellant to the crime. See Malone, 253 S.W.3d at 257 (holding that presence,

coupled with suspicious circumstances, can tend to connect a defendant with the

crime); Brown, 672 S.W.2d at 489 (holding that being in the company of the

accomplice near the time of the offense is a suspicious circumstance); Herron,

2005 WL 1646043, at *5 (holding that driving in tandem with the drugs to a new

drug deal location, along with other factors, tended to connect Herron to the

crime). It is therefore not outcome determinative in this case that Officer Bali

could not understand the Spanish-language conversations between Appellant

and Mendoza.

      A rational jury could conclude that the evidence tended to connect

Appellant to the commission of the crime.       See Malone, 253 S.W.3d at 259


                                         14
(holding that jurors can rationally find that evidence showing more than mere

presence sufficiently tends to connect a defendant to the crime); see also

Simmons, 282 S.W.3d at 508 (holding that the evidence must link the accused to

the crime in some way and show that rational jurors could conclude that the

evidence tends to connect the accused to the crime). While the evidence may

have alternative permissible views that do not tend to connect Appellant to the

offense, the jury viewed the evidence as tending to connect Appellant to the

offense, and we must defer to that view. Simmons, 282 S.W.3d at 508 (holding

that appellate courts should defer to the view of the facts chosen by the fact-

finder). Applying the appropriate standard of review, we hold that the evidence is

sufficient to support Appellant’s conviction, and we overrule Appellant’s issue.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895,

912; see also Malone, 253 S.W.3d at 257; Joubert, 235 S.W.3d at 731.

                                 V. Conclusion

      Having overruled Appellant’s sole issue on appeal, we affirm the trial

court’s judgment.


                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 21, 2013



                                       15
