Opinion filed June 27, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-11-00042-CR
                                  __________

                 JENNIFER MARIE VALLEY, Appellant

                                         V.

                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 29th District Court
                            Palo Pinto County, Texas
                          Trial Court Cause No. 14161F


                      MEMORANDUM OPINION
      The jury convicted Jennifer Marie Valley, Appellant, of the offense of
engaging in organized criminal activity and assessed her punishment at
confinement for thirty-seven years and a fine of $22,500. We affirm.
      Appellant presents two issues and several sub-issues for review on appeal.
In the first issue, Appellant challenges the legal sufficiency of the evidence. Under
this issue, Appellant complains that the indictment and jury charge were defective,
that the elements of the offense were not proven, that the evidence was insufficient
to corroborate the testimony of the accomplice witnesses, that the admission of
evidence regarding the accomplice witnesses’ convictions constituted error, that
the State failed to prove a conspiracy between Appellant and each of the alleged
conspirators, and that the State failed to prove a conspiracy to commit the offense
of engaging in organized criminal activity. In her second issue, Appellant argues
that the trial court abused its discretion in permitting testimony related to evidence
that had been suppressed and in denying Appellant’s request for a continuance.
       We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d).            Under the Jackson standard, we
examine all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). To support a conviction based upon the testimony of an
accomplice, there must be corroborating evidence that tends to connect the accused
with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Reed v.
State, 744 S.W.2d 112 (Tex. Crim. App. 1988). To determine the sufficiency of
the corroboration, we must examine the testimony of the non-accomplice witnesses
and determine if there is inculpatory evidence tending to connect Appellant to the
crime. Reed, 744 S.W.2d at 127. An accomplice witness need not be corroborated
in all his testimony, and the corroboration need not directly link the accused to the
crime or be sufficient in itself to establish guilt. Id.




                                            2
      The statute applicable to the offense of engaging in organized criminal
activity is TEX. PENAL CODE ANN. § 71.02 (West Supp. 2012).              That statute
provides in relevant part:
            (a) A person commits an offense if, with the intent to establish,
      maintain, or participate in a combination or in the profits of a
      combination . . . , the person commits or conspires to commit one or
      more of the following:
             . . . .
                    (5) 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, misrepresent-
             tation, or deception (emphasis added).
A combination is defined as “three or more persons who collaborate in carrying on
criminal activities.” TEX. PENAL CODE ANN. § 71.01(a) (West 2011).
      Appellant was indicted along with fourteen other named individuals who,
according to the indictment, “did then and there, with the intent to establish,
maintain, or participate in a combination or in the profits of a combination . . .
conspire to commit the offense of delivery of controlled substance, namely
methamphetamine, in an amount over 400 grams by agreeing with each other that
they would engage in conduct that constituted said offense.” The indictment also
alleged that, in furtherance of said agreement, Appellant committed the overt act of
delivery of between one and four grams of methamphetamine to Jay Hutchens on
or about June 17, 2008. The jury charge contained similar language. Contrary to
Appellant’s assertion, neither the indictment nor the jury charge should have
included the remaining language from Section 71.02(a)(5) relating to a dangerous
drug or to the possession of a controlled substance or dangerous drug through
forgery,   fraud,   misrepresentation,   or   deception.   As   emphasized    above,
Section 71.02(a)(5) is couched in disjunctive terms, and the omitted terms would

                                          3
merely have referenced alternatives that did not apply to the facts in this case. The
indictment and the jury charge included the essential elements of the crime.
        The evidence presented at trial included the testimony of several witnesses.
Michael Donald Stoner testified that, at the time of this offense, he was a narcotics
investigator for the Texas Department of Public Safety. By the time of trial, he had
become a Texas Ranger. Ranger Stoner testified that his goal as a narcotics
investigator was to locate the source of the narcotics and disrupt the flow of drugs
by taking out the source. The investigation in this case lasted for more than one
year.
        During the course of the investigation, Sergeant Jay Hutchens was the
supervisor of the City County Narcotics Unit in Mineral Wells. Sergeant Hutchens
explained that various techniques are used in the investigations of drug traffickers,
including drug purchases by undercover officers and confidential informants,
numerous hours of surveillance, and intel from the local patrol officers.
Sergeant Hutchens testified that, on June 17, 2008, while working undercover, he
portrayed himself to be a drug user and attempted to purchase methamphetamine
from Edward Lotz, from whom he had previously purchased drugs. He went to
Lotz’s house to negotiate the purchase of a “sixteenth” of an ounce of
methamphetamine for $120. Lotz agreed, but he did not have the drugs on his
person. Lotz made a phone call. Shortly thereafter, Appellant pulled up in a white
Ford Mustang. Lotz gave Appellant some money, and Appellant handed Lotz a
small plastic baggie that contained methamphetamine.         Lotz then handed the
methamphetamine to Sergeant Hutchens, who inspected the methamphetamine and
gave Lotz $120 of marked money.          Lotz then handed the marked money to
Appellant, and she left. The substance in the baggie was subsequently tested by a
forensic scientist who determined that the substance weighed 1.47 grams and
contained methamphetamine.
                                          4
        Officer Penny Judd of the Mineral Wells Police Department testified that she
was assigned to the City County Narcotics Unit at the time of this offense. She
conducted surveillance on Sergeant Hutchens when he went to Lotz’s residence
and purchased methamphetamine. Officer Judd observed the white Ford Mustang
arrive at the residence and saw Lotz and Sergeant Hutchens approach the Mustang.
        Edward Lotz, one of the named coconspirators, testified that he was serving
a fifteen-year sentence in this case.1 Lotz testified similarly to Sergeant Hutchens
regarding the purchase on June 17, 2008, and Appellant’s involvement in that
purchase. According to Lotz, Sergeant Hutchens came to Lotz’s house to purchase
methamphetamine, but Lotz did not have any on hand and called Appellant to have
it delivered. Appellant drove up in a white Mustang. Lotz took the money from
Sergeant Hutchens and gave it to Appellant. Appellant then handed Lotz the
methamphetamine, and Lotz handed the methamphetamine to Sergeant Hutchens.
Lotz said he had known Appellant for about six months and had obtained drugs
from her about ten times. Each time, Lotz purchased about a “sixteenth” and paid
Appellant $120. Lotz testified that Appellant was his source for drugs.
        Jennifer Marie Lawhorn testified that Appellant’s house “was the place to
go” to purchase methamphetamine. Lawhorn was stopped by Deputy Gary Morris
in September 2008 after leaving Appellant’s residence with one gram of
methamphetamine that she had purchased from Appellant. The deputy seized the
methamphetamine. Prior to that date, Lawhorn had purchased methamphetamine
from Appellant about fifteen times over a three-month period. Like Lawhorn,
Barbara Olson was stopped by Deputy Morris after leaving Appellant’s house in
September 2008, where she had just purchased methamphetamine. Olson testified

        1
          In one of her sub-issues, Appellant asserts that reversible error occurred when the prosecutor
elicited testimony from the accomplices that they had been convicted and were serving time for the
offense for which Appellant was on trial. Appellant did not object to this evidence at trial and, therefore,
failed to preserve this complaint for appellate review. TEX. R. APP. P. 33.1(a).

                                                     5
that she had purchased small quantities of methamphetamine from Appellant about
twenty-five different times. Deputy Morris seized the methamphetamine during
both traffic stops, and both Lawhorn and Olson were subsequently arrested.
Deputy Morris confirmed that, at the time of this offense, he was working with the
City County Narcotics Unit as a uniformed officer in a marked unit. He conducted
traffic stops of vehicles coming and going from residences that were under
surveillance.
      Jack Baker, a named coconspirator serving a 25-year sentence in this case,
had made no deals with the prosecutor in return for testifying at Appellant’s trial.
Baker testified that he had known Appellant for quite a few years, since they were
teenagers. Baker admitted that he sold methamphetamine to Appellant for about
six to eight months before he was arrested. During those months, Appellant
purchased from Baker “[a]bout half an ounce” of methamphetamine “[e]very day,
if not every other day.” Using a calculator on the witness stand, Baker figured
that, if Appellant had made a purchase only every other day for six months, she
would have purchased about forty-five ounces of methamphetamine, which
translates to 1,260 grams.     Baker testified that Appellant was also getting
methamphetamine from other people too and that he had no contract with her.
      The record shows that, based upon two outstanding arrest warrants,
Deputy Morris arrested Appellant during a traffic stop on December 10, 2008, and
took her to jail. At the jail, Officer Judd retrieved two small baggies containing a
crystal-like substance from Appellant. The substance was tested by a forensic
scientist; it weighed 3.07 grams and contained methamphetamine.
      The day after her arrest, Appellant was interviewed at the jail by
Ranger Stoner. A DVD of that interview was admitted into evidence and played
for the jury during trial. During her interview, Appellant stated that her supplier
was Jack Baker. Ranger Stoner testified that Appellant “was dealing with multiple
                                         6
people at her level, as well as people above her level.” Ranger Stoner had obtained
information from Baker that one of Baker’s suppliers, but not his main source of
supply, was Edgar Cruz, also known as “Chicago.” Cruz was a named cocon-
spirator in this case.
       With respect to Appellant’s accomplice-witness argument, we hold that the
testimony of the accomplices was sufficiently corroborated by the non-accomplice
testimony of Sergeant Hutchens, Officer Judd, and Deputy Morris and also by
Appellant’s own statements made during her interview.           The non-accomplice
evidence tended to connect Appellant to the crime.
       Furthermore, contrary to Appellant’s contention, the State did not need to
prove a conspiracy between Appellant and each of the alleged conspirators; it only
needed to prove that Appellant intended to participate in a combination of three or
more collaborating persons. In proving the existence of a combination, the State
need not demonstrate the participation of all alleged members of the combination;
the State need only prove the participation of at least three of the named members
of the combination, including the defendant. Rodriguez v. State, 90 S.W.3d 340,
354 (Tex. App.—El Paso 2001, pet. ref’d).          Pursuant to Section 71.01(a)(3),
participants in a combination of three or more persons collaborating to carry on
criminal activities “may stand in a wholesaler-retailer or other arm’s-length
relationship in illicit distribution operations.” The evidence showed that Appellant
acted in combination with Lotz, Baker, and Cruz to deliver methamphetamine.
The evidence also showed that the overt act alleged in the indictment was not an
isolated incident but, rather, a continuing course of conduct and that Appellant had
the intent to participate in the combination or the profits thereof. See Hart v. State,
89 S.W.3d 61, 63–64 (Tex. Crim. App. 2002).
       Appellant also contends that the lack of a charge on the law of parties and the
use of the term “delivered,” rather than “constructively delivered,” in the indictment
                                          7
caused the jury charge to be erroneous and the evidence to be insufficient. We
disagree. “Deliver” was defined in the jury charge as follows: “to transfer, actually
or constructively, to another a controlled substance.” The definition tracked TEX.
HEALTH & SAFETY CODE ANN. § 481.002(8) (West 2010). The trial court also
defined “[c]onstructive delivery” as the “transfer by a person of a controlled
substance either belonging to her or under her control by some other person or
means at the direction of the person.” The overt act alleged to have been committed
by Appellant was the delivery of methamphetamine to Sergeant Hutchens. Neither
in the indictment nor in the jury charge was it alleged that Appellant “actually”
transferred or “actually” delivered the methamphetamine to Sergeant Hutchens.
Appellant’s contention that “the jury could not find that [Appellant] made a
‘constructive delivery’ . . . when the jury charge did not include a ‘law of the
parties’ charge” is not correct. Based on the definition of “constructive delivery,” a
charge on the law of parties was unnecessary. The evidence was sufficient to show
that Appellant constructively delivered methamphetamine to Sergeant Hutchens.
      After reviewing all of the evidence in the light most favorable to the verdict,
we conclude that a rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. The jury could have found that Appellant
committed the offense of unlawful delivery of a controlled substance by delivering
one to four grams of methamphetamine to Sergeant Hutchens on or about June 17,
2008, and that, in doing so, Appellant acted with the intent to participate in a
“combination” or in the profits of a “combination” to carry on criminal activities:
the delivery of methamphetamine. We hold that the evidence is sufficient to
support Appellant’s conviction for engaging in organized criminal activity.
Appellant’s first issue, including all of its sub-issues, is overruled.
      Appellant’s contentions in her second issue and its sub-issues involve
Deputy Morris’s testimony about Appellant’s arrest on December 10, 2008;
                                            8
evidence stemming from that arrest; and the denial of Appellant’s pretrial motion
for continuance. Appellant asserts that the trial court abused its discretion when,
after granting her motion to suppress any statements she made while in custody
before being notified of her Miranda 2 rights, the trial court permitted testimony
about the events that transpired after the suppressed statements. Appellant asserts
that the methamphetamine seized at the jail and any statements she made during
her interview the next day with Ranger Stoner constituted “fruit of the poisonous
tree” and should have been suppressed. The record shows that, with respect to the
interview, Appellant objected on a different basis and that, with respect to the
methamphetamine, she stated that she had no objection to its admission into
evidence. Therefore, Appellant did not preserve this complaint for review because
she did not object on such basis at trial. TEX. R. APP. P. 33.1(a); Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002). Moreover, neither the methamphe-
tamine seized at the jail nor the statements made during her interview the next
day—after being notified of her rights under Miranda—constituted the fruit of a
poisonous tree. Appellant was arrested and taken to jail because she had two
outstanding arrest warrants; the methamphetamine was seized as a result of her
arrest, not as a result of any statement she made to Deputy Morris.
      Appellant’s assertion that the trial court abused its discretion in denying her
motion for continuance is also without merit. The record shows that Appellant had
had retained counsel adequately representing her in this case for more than one
year when she retained another attorney approximately one month before this case
was set for trial. On December 30, 2010, just four days before the trial was set to
begin, Appellant’s newly retained counsel filed a motion for continuance. The trial
court heard the motion on the morning of trial. New counsel asserted that she
needed time to adequately prepare for trial. The trial court noted that Appellant
      2
          Miranda v Arizona, 384 U.S. 436 (1966).

                                                    9
had had other counsel for over a year and expressed a concern that granting
Appellant’s motion would “cause[] a cancellation of a [jury] trial that has already
been set.”      The State pointed out that Appellant had “been on notice since
November the 9th” that this case was set for trial. The right to obtain counsel of
one’s own choice is neither unqualified nor absolute; that right must be balanced
with a trial court’s need for the prompt and efficient administration of justice. Ex
parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982). We hold that the
trial court acted within its discretion in denying Appellant’s motion for
continuance. See id. at 720–21. Appellant’s second issue, including its sub-issues,
is overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE
June 27, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                        10
