
NO. 07-02-0258-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 1, 2003

______________________________


JACK A. CARLTON, APPELLANT

V.

COBANK, INC., A/K/A NATIONAL BANK FOR COOPERATIVES,
A/K/A COBANK, ACB, A/K/A ASSOCIATED COLORADO BANKS, INC.
AND H.C. BRILLHART, JR., APPELLEES

_____________________________________

FROM THE 84TH DISTRICT COURT OF OCHILTREE COUNTY;

NO. 10261; HONORABLE WILLIAM D. SMITH, JUDGE

_______________________________


Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. (1)


MEMORANDUM OPINION (2)

	Jack A. Carlton challenges a take-nothing judgment on his action against CoBank,
Inc., f/k/a National Bank for Cooperatives, a/k/a CoBank, ACB, a/k/a Associated Colorado
Banks, Inc. (CoBank) and H.C. Brillhart, Jr., and the award of attorney's fees and court
costs against him.  By his first three issues, Carlton contends  the trial court erred
because: (1) as submitted, question one of the jury charge deprived Carlton of the
submission of his DTPA (3) claims; (2) question number one was not a broad form question
and amounted to a comment on the weight of the evidence; and (3) it denied Carlton's
motion to impose a constructive trust on the monies received by Brillhart.  
	Next, Carlton asserts the evidence conclusively established: (4) CoBank committed
fraud against him, and the jury's finding of no fraud was against the great weight and
preponderance of the evidence; (5) CoBank engaged in deceptive trade practices against
him; (6) he sustained out-of-pocket damages directly related to the inability to purchase
the equipment, and the jury's finding of no damages was against the great weight and
preponderance of the evidence; (7) his bid letter conformed to the bid offering letter, and
the jury's finding to the contrary was against the great weight and preponderance of the
evidence; and (8) as a matter of law, he sustained damages, his bid conformed with the
bid offering letter, and CoBank committed fraud.
	Finally, Carlton maintains (9) his DTPA claims were not groundless, and (10) the
trial court erred by granting the declaratory relief requested by CoBank and Brillhart
because declaratory judgment actions could not be asserted as counterclaims for a dispute 
already pending before the trial court.  Based upon the rationale expressed herein, we
affirm.  
	Stramit USA was a strawboard manufacturing business located in Perryton, Texas
that went out of business.  Brillhart, a resident of Perryton, was a Stramit investor and a
member of the Board of Directors.  CoBank, which had offices in Wichita, Kansas, loaned
money to Stramit, and secured its loan with strawboard manufacturing equipment.  
	In 1996 Stramit defaulted on its loans to CoBank and ceased operations.  Initially,
Stramit attempted to voluntarily liquidate the equipment, primarily through the efforts of a
few of its board members, including Brillhart.  When those efforts failed, however, CoBank
decided to proceed with a foreclosure sale. 
	CoBank did not have an office or representative in Perryton.  When Brillhart offered
to show the equipment to prospective buyers, CoBank gave him a key to the Stramit
building.  CoBank then instructed Carlton and other interested persons to contact  Brillhart
or Carl Ellis, one of the other board members, about inspecting the equipment.  
	On November 13, 1996, CoBank sent invitations to bid on the equipment to a
number of prospective buyers, including Carlton and Brillhart.  After contacting Brillhart,
Carlton went to Perryton and inspected the equipment.  At that time, Brillhart told Carlton
he intended to bid on the equipment.  According to Carlton, Brillhart also told him that he
was the agent for CoBank and would get the "last look" at the bids.  In addition to the
Perryton trip, Carlton traveled to England to confer with the manufacturer of the equipment. 
 	On December 2, 1996, the bids were opened at the CoBank office in Wichita. 
Although Carlton's bid was the highest, CoBank declined to accept it because the bid
imposed conditions on the sale not included in the solicitation letter.  CoBank then
accepted the lower bid of Brillhart, and the equipment was sold to him.
	By his trial pleadings, Carlton alleged five causes of action, which he designated
as  (1) fraud against CoBank and Brillhart; (2) conspiracy between CoBank and Brillhart;
(3) agency; (4) deceptive trade practices under the Texas DTPA; and (5) breach of
contract.  In addition to defenses, CoBank and Brillhart presented counterclaims seeking
the award of attorney's fees on the basis that Carlton's DTPA action was groundless and,
alternatively, under the Uniform Declaratory Judgments Act.  Tex. Civ. Prac. & Rem. Code
Ann. § 37.001, et seq. (Vernon 1997).  Based upon the jury findings, the trial court signed
a judgment denying Carlton any recovery and awarding CoBank and Brillhart each
attorney's fees in the amount of $17,500.
	At the outset, we note that issues three and six address claims against only Brillhart
while issues one, two, four, five, seven, and eight address claims against CoBank alone.
Issues nine and ten address the award of attorney's fees to CoBank and Brillhart. 
Because Carlton's contentions are not common as to CoBank and Brillhart, we will divide
our analysis into three sections.  
Claims Against Brillhart
			By his third issue, Carlton contends the trial court erred in denying his motion to
impose a constructive trust on the monies received by Brillhart.  We disagree.  The trial
court signed a take-nothing judgment against Carlton on March 21, 2002.  Because
Carlton did not file his motion to impress a constructive trust until June 10, 2002, more
than 30 days after the judgment was signed, his motion was not timely filed.  See Tex. R.
Civ. P. 329b(g).  Moreover, a constructive trust is imposed to redress wrong or prevent
unjust enrichment.  Trostle v. Trostle, 77 S.W.3d 908, 915 (Tex.App.--Amarillo 2002, no
pet.).  In this case, Carlton offered no evidence to establish Brillhart was unjustly enriched.
Carlton's third issue is overruled.  
	By his sixth issue, Carlton contends the evidence established he sustained out of
pocket damages directly related to his inability to purchase the equipment, and the jury
finding of no damages was against the great weight and preponderance of the evidence. (4) 
We disagree.  By its answer to question eight, the jury found Brillhart's conduct was not
the proximate cause of any damages to Carlton.  The evidence, Carlton contends,
established he sustained out-of-pocket damages as a result of traveling to Perryton and
elsewhere in preparation for his bid.  However, the record reveals Carlton went to Perryton
at the suggestion of CoBank's representative Dave Ehret, not Brillhart.  Moreover, by
Carlton's own admissions, Brillhart did not say or do anything to cause him to do anything
except travel to England to speak with the equipment manufacturer.  The jury could easily
have found Carlton's travel expenses to England were unreasonable and not a
foreseeable result of Brillhart's alleged conduct.  Consequently, the jury's findings that
Carlton suffered no damages is not against the great weight and preponderance of the
evidence.  Carlton's sixth issue is overruled.  
Claims Against CoBank
	By his first issue, Carlton maintains the inclusion of jury question one was reversible
error because it deprived him of the submission of his DTPA claims.  Specifically, Carlton
complains it was error for the trial court to submit questions two, three, and four
conditioned on the jury's answer to question one.  Then, by his second issue, he contends
the inclusion of question one was reversible error because it was not a broad form
question and amounted to a comment on the weight of the evidence.  We disagree.
	Because issues one and two raise questions of charge error, we will consider them
together.  At the charge conference, Carlton's counsel announced:
		Your Honor, for the record Plaintiff will object to the inclusion of
Question 1.  We think it is a question that deals ultimately with the
issue here and it's not in broad form.  Other than that, we have no
objection.

	A party must object and distinctly point out the objectionable matter and grounds of
an objection.  Tex. R. Civ. P. 274.  An objection that does not meet both requirements of
the rule does not preserve error for appeal.  Castleberry v. Branscum, 721 S.W.2d 270,
276 (Tex. 1986).  Carlton's objection at the charge conference did not challenge the
conditional nature of questions two, three, and four.  Neither did his trial objection
elaborate on how question one was harmful or erroneous for not being in broad form, nor
did the objection challenge the question as a comment on the weight of the evidence. 
Accordingly, Carlton's contentions were not preserved.  See Scurlock Permian Corp. v.
Brazos County, 869 S.W.2d 478, 484 (Tex.App.--Houston [1st Dist.] 1993, writ denied)
(holding an objection at trial that is not the same as the objection urged on appeal presents
nothing for appellate review).  Furthermore, the manner in which the jury is charged is
generally within the discretion of the trial court.  Campbell v. C.D. Payne & Geldermann
Sec., Inc., 894 S.W.2d 411, 420 (Tex.App.--Amarillo 1995, writ denied).  Considering the
announcement of counsel at the charge conference, we conclude the trial court did not
abuse its discretion in submitting the questions as it did.  Issues one and two are
overruled.
	By his fourth issue, Carlton asserts the evidence conclusively established CoBank
committed fraud, and the jury finding of no fraud was against the great weight and
preponderance of the evidence.  Specifically, Carlton maintains CoBank misrepresented
the manner in which the sale of the equipment would be conducted, the operational status
of the equipment, the outcome of the sale, and the existence of liens on the equipment. 
We disagree.  
	The elements of common law fraud are that: (1) a material misrepresentation was
made; (2) the representation was false; (3) when the representation was made, the
speaker knew it was false or made it recklessly without any knowledge of the truth and as
a positive assertion; (4) the representation was made with the intention that it be acted
upon by the other party; (5) the party acted in reliance upon the representation; and (6) the
party suffered injury.  Johnson & Higgins of TX v. Kenneco Energy, 962 S.W.2d 507, 524
(Tex. 1998).  The trial court in this case submitted essentially the same definition of fraud
to the jury in question five. 

	Assuming arguendo CoBank, in fact, made misrepresentations to Carlton regarding
the bid process and the equipment to be sold, Carlton offered no testimony to establish he
relied upon those misrepresentations or that they caused him any damages.  Therefore,
we cannot say the jury's finding that CoBank did not engage in fraud is against the great
weight and preponderance of the evidence.  Carlton's fourth issue is overruled.
	Carlton contends by his seventh issue that the jury finding related to his bid letter
was against the great weight and preponderance of the evidence.  We disagree.   In
response to CoBank's invitation to bid, Carlton submitted a written bid on December 1,
1996, conditioned upon the following terms:
	[CoBank] providing title in Fee, free of any other leins [sic], mortgage
assesments [sic], or any other form of encumberance [sic] what ever [sic].
	[CoBank's] indemnification against any cost or expense of any kind,
including legal fees concerning this acquisition.
	[Carlton] ha[ving] the unfettered right to approve or disapprove, in his own 
Judgment, whether or not proper title is being transferred.
	The completed product inventory is not included.  Add the sum of $30,000
if this inventory is to be included.  Inventory subject to Bidders [sic] physical
inspection and Bidders [sic] approval of same.
Even if the invitation to bid constituted an offer to sell that could not be withdrawn,
Carlton's submission of the foregoing conditions amounted to a rejection of the offer.  See
Texas State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 11 (Tex.App.-Houston [1st Dist.] 1994,
no writ).  Consequently, we conclude the jury's finding that Carlton's letter did not conform
to CoBank's invitation to bid letter was not contrary to the great weight and preponderance
of the evidence.  Carlton's seventh issue is overruled.
	By his fifth issue, Carlton contends the evidence conclusively established CoBank
engaged in deceptive trade practices against him.  We disagree.  Question two of the
court's charge asked whether CoBank engaged in any false, misleading, or deceptive act
or practice, which was a producing cause of damages to Carlton.  However, because
question two was conditioned upon an affirmative answer to question one, the jury did not
reach it.  Our conclusion that Carlton failed to preserve error with respect to the
submission of questions one, two, three, and four renders Carlton's complaint against the
jury's lack of a finding with respect to his DTPA claims moot.  Accordingly, Carlton's fifth
issue is overruled.
	By his eighth issue, Carlton contends the evidence at trial proved as a matter of law
that he sustained damages, his bid conformed with the bid offering letter, and CoBank
committed fraud.  Our disposition of Carlton's fourth and seventh issues pretermits our
consideration of his eighth issue.  Accordingly, Carlton's eighth issue is overruled. 
Counterclaims by CoBank and Brillhart
	By his ninth issue, Carlton contends the evidence established his DTPA claims were
not groundless.  Then, by his tenth issue, he asserts declaratory relief was not available
to CoBank and Brillhart.  Also, by these issues, Carlton claims the trial court's award of
attorney's fees to CoBank and Brillhart was erroneous.  We disagree.
	CoBank and Brillhart sought attorney's fees under both the DTPA and the Uniform
Declaratory Judgments Act.  Carlton filed no answer to the counterclaims and presented
no special exceptions to the claim for attorney's fees under the DTPA; therefore, his issues
present nothing for review.  See Tex. R. Civ. P. 90; see also National Farmers Union Prop.
v. Degollado, 844 S.W.2d 892, 900 (Tex.App--Austin 1992, writ denied).  Moreover, in
order to preserve a complaint for appellate review, the record must show the appellant
presented an objection in the trial court.  See Tex. R. App. P. 33.1; see also Williamson
v. New Times, Inc., 980 S.W.2d 706, 711 (Tex.App.--Fort Worth 1998, no pet.).  Because
the record here does not show the required objections in the trial court, Carlton presents
nothing for review.  Issues nine and ten are overruled.
	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis
						     Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Tex. R. App. P. 47.2(a).
3. The subchapter under which appellant proceeded is designated the Deceptive
Trade Practices-Consumer Protection Act.  Tex. Bus. & Com. Code Ann. § 17.41, et seq.
(Vernon  2002).  For the sake of brevity, we will refer to the act as the DTPA.  
4. Though Carlton does not identify which jury question he challenges under this
issue, we presume he disputes the finding of zero damages in response to question
number eight.


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NO. 07-10-0051-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL E 
 
 JULY 22, 2011

 
 

 
 
JOSE LUIS RODRIGUEZ, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 181ST DISTRICT
COURT OF RANDALL COUNTY;
 
NO. 20,070-B; HONORABLE JOHN B. BOARD, JUDGE

 
 

 
Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]
 
 
MEMORANDUM OPINION
            Appellant, Jose
Luis Rodriguez, was convicted by a jury of possession with intent to deliver a
controlled substance, cocaine, in an amount of 400 grams or more[2] and assessed punishment of
eighty years confinement and a $250,000 fine. 
In three issues, Appellant asserts (1) the evidence in support of his
conviction is legally and (2) factually insufficient and (3) the trial court
abused its discretion in denying Appellant's motion to dismiss for lack of
speedy trial.  We affirm.   
Background
            On July 24, 2008, a complaint was
filed alleging that on or about September 21, 2007, Appellant intentionally and
knowingly possessed, with intent to deliver, a controlled substance, to-wit:
cocaine, in an amount by aggregate weight, including adulterants or dilutants,
of 400 grams or more.  Appellant was not
arrested on the complaint at that time because he was already incarcerated.[3]  A Randall County Grand Jury subsequently returned
an indictment on September 10, 2008, alleging the same offense, and a capias
was issued but not executed.  Pursuant to
a bench warrant issued November 21, 2008, Appellant was transferred from the
Wheeler State Jail Unit in Hale County, to the Randall County Jail on December
5, 2008; however, he was not arraigned on the indictment until April 1, 2009.  An attorney was appointed to represent him on
May 22, 2009, and on June 4, 2009, Appellant moved to dismiss the State's cause
for lack of a speedy trial.  The trial
court denied his motion on June 26, 2009, and a four day jury trial commenced
on February 1, 2010.
            During
the trial, the State adduced evidence that, on the morning of September 21,
2007, the Narcotics Enforcement Team for the Randall County Sheriff's Office
and SWAT Team for the Amarillo Police Department executed a "no
knock" search warrant at 6700 Hollywood Road, Amarillo, Texas (house).  While evidence recovered at the scene
indicated that the house had been occupied by at least three persons:
Appellant, Sam Jalomo, Jr., and Angel Gutierrez; Jalomo was the only person present
when the warrant was executed.  When the
police entered, Jalomo was located in the southeast bedroom.[4]  As officers searched the house, they found
evidence of a drug packaging and sales operation in nearly every room.  In the attic, officers found four kilograms
of cocaine packaged as compressed bricks in a blue gym bag.  In the laundry room, they found a black
duffle bag containing marijuana residue, and, in the living room, a magazine
for a semi-automatic rifle and duct tape.[5]  On the kitchen counter was a heat sealing
machine with a roll of heat seal packages.[6]  On a roll of heat seal packages were the
fingerprints of Appellant, Marybell Delarossa (Appellant's girlfriend) and
Kathy Okechukwu (Jalomo's girlfriend).  
            In
the southeast bedroom, or Jalomo's bedroom, officers found $1400 in cash, $930
in Jalomo's shirt pocket and $470 on the counter in the bathroom.  More than two grams of cocaine were scraped
from the bathroom counter and forty-one plastic Ziploc baggies individually filled
with cocaine totaling 1.15 kilograms were found in a shoebox underneath the
lavatory.  The officers also found a
black ceramic plate encrusted with cocaine containing a spoon with Appellant's
and Jalomo's fingerprints on the bottom of the plate.[7]  There was also a plastic bag containing two
boxes of baking soda and three digital scales covered with a white residue.[8]  Underneath Jalomo's bed was a Norvinco SKS
semi-automatic rifle with a magazine.[9]  Officers also found a travel document
confirming a six-day trip to Las Vegas, Nevada, for Jalomo and Okechukwu, including
hotel accommodations costing $1,297.50.[10]
            In
the northwest, or Gutierrez's bedroom, the officers found an address book, 9
millimeter handgun ammunition, marijuana grinder, marijuana and two bundles of
plastic Ziploc baggies.[11]  The officers also found airplane ticket stubs
naming Appellant and his girlfriend, Delarossa. 
In the bottom of Gutierrez's closet, the officers found a large black
plastic garbage bag that contained a second bag containing packaging materials
used to transport drugs, i.e., five to ten used packages for cocaine bricks
made using cardboard, plastic with heat seals and tape.  Some of the items had white powder on them.  Appellant's fingerprints were found on a
baking soda container in the second bag. 
In the northeast, or Appellant's,
bedroom,[12]
the officers found a bottle of inositol on the bathroom counter.[13]  In the medicine cabinet area, officers found
a plastic container holding Q-Tips, little plastic baggies and a set of digital
scales.  White powder was found in the
bottom of the container and on the digital scales.  Appellant's fingerprints were on the bottom
of the plastic container.  The officers
also found court documents signed by Appellant, an envelope postmarked August
13, 2007, addressed to Appellant in Canyon, Texas, and two airline baggage
claim stubs naming Appellant and Delarossa. 

            At
trial, Gutierrez testified that he, Appellant and Jalomo "go way
back" and "grew up together in Dumas," Texas.  According to Gutierrez, Appellant "knew
what was going -- he knew what my homeboy [Jalomo], was doing," but "didn't
have no part in it."   Gutierrez testified that Jalomo and Appellant
had been living at the house for several months before he moved in.  He further testified that five bricks of
cocaine were delivered the night before the search.  He and Jalomo cut one brick with baking soda
on a plate in Jalomo's bedroom and measured out the cocaine into forty-one
plastic baggies that were subsequently stored in a shoebox underneath Jalomo's
lavatory.[14]  He further testified Appellant did not know five
kilograms of cocaine had been delivered to the house the night before the
search.  
            After
leaving the house to pick up his girlfriend the day of the search, Gutierrez
observed police officers descending on the house and immediately called
Appellant and "told him that the cops had hit the house that they were
staying at."  He did not call anyone
else.  Thereafter, he went to an apartment
where Appellant's girlfriend stayed and picked him up.  They then attempted to hide Jalomo's red BMW
because they knew authorities would seize the vehicle after the search.  Of the three residents, Jalomo was the only
one arrested that day.  Gutierrez and
Appellant were subsequently arrested pursuant to warrants issued in conjunction
with the filing of criminal charges.[15]
 
            At
the trial's conclusion, the jury convicted Appellant, sentenced him to eighty
years confinement and fined him $250,000. 
This appeal followed.  
Discussion
            In his first and second issues,
Appellant contends the evidence is legally and factually insufficient to
sustain his conviction for the knowing or intentional possession of the amount
of cocaine alleged.  He also asserts by a
third issue that the trial court abused its discretion by denying his motion to
dismiss for lack of a speedy trial.   


I.          Sufficiency of the
Evidence
            A.        Standard
of Review
            Since
Appellant's brief was filed, the Texas Court of Criminal Appeals has held that
the only standard that a reviewing court should apply in determining whether
the evidence is sufficient to support each element of a criminal offense the
State is required to prove beyond a reasonable doubt is the standard set forth
in Jackson v. Virginia, 443
U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).[16]  Under
that standard, in assessing the sufficiency of the evidence to support a
criminal conviction, this Court considers all the evidence in the light most
favorable to the verdict and determines whether, based on that evidence and
reasonable inferences to be drawn therefrom, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.  See
Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912.[17]  This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.  Jackson, 443 U.S. at 319.  See Hooper v. State, 214
S.W.3d 9, 15 (Tex.Crim.App. 2007). 

            Further, the trier of fact is the
sole judge of the weight of the evidence and credibility of the witnesses; Tex.
Code Crim. Proc. art. 38.04 (West 1979); Margraves
v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not
re-evaluate the weight and credibility determinations made by the
fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740
(Tex.Crim.App. 1999).  Thus, we
resolve any inconsistencies in the evidence in favor of the verdict. 
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).
            In addition, each fact need not
point directly and independently to the guilt of the appellant, as long as the
cumulative effect of all the incriminating facts are sufficient to support the
conviction.  Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) (citing Alexander v. State, 740 S.W.2d 749, 758
(Tex.Crim.App. 1987)).  Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish
guilt.  Hooper, 214 S.W.3d at 13.  Accordingly, we will affirm the judgment of the trial court if the
evidence is sufficient to prove Appellant's guilt under any theory authorized
in the jury charge.  See Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App. 1992) cert. denied, 509 U.S. 922, 113 S.Ct.
3035, 125 L.Ed.2d 722 (1993) ("It is well-settled that when a general
verdict is returned and evidence is sufficient to support a finding of guilt
under any of the paragraph allegations submitted the verdict will be
upheld.")[18]
B.        Law
of the Parties -- Possession of a Controlled Substance
            To establish unlawful possession of a controlled substance,
the State must prove (1) that the defendant exercised care, custody, control,
or management over the contraband and (2) that the defendant knew that what was
possessed was contraband.  Salazar v. State, 95 S.W.3d 501, 504
(Tex.App.--Houston [1st Dist.] 2002, pet. ref'd).  In this case, however, the jury was
authorized to find Appellant guilty under the law of parties.[19]  Thus, to prove Appellant was criminally
responsible as a party, the State was required to prove that another person was
guilty of the charged offense; see Torres v. State, 233 S.W.3d 26, 30 n.2
(Tex.App.--Houston [1st Dist.] 2007, no pet.), and Appellant, "acting with
intent to promote or assist the commission of the offense,"
"solicited, encouraged, directed, aided, or attempted to aid the other
person to commit the offense."  Tex.
Penal Code Ann. § 7.02(a)(2) (West 2011).  See
Torres, 233 S.W.3d at 30 n.2.    
            Gutierrez admitted while testifying at trial to knowingly
having care, custody, control, or management over the cocaine located in the
house where Appellant was also staying.  Furthermore,
Jalomo was in actual possession of the cocaine at the time the search warrant
was executed.  Therefore, the issue is
whether Appellant acted with intent to assist either Gutierrez's or Jalomo's
commission of the offense by aiding their possession, with intent to deliver,
of the cocaine recovered from the house. 
See Salazar, 95 S.W.3d at 505.  In
our analysis of this issue, we "look at 'events occurring before, during
and after the commission of the offense and may rely on actions of the
defendant which show an understanding and common design to do the prohibited
act.'"  Guevara, 152 S.W.3d at 49 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1987)).
            The State's evidence showed that Appellant was living in
a house with persons he had known since childhood and knew that Jalomo and
Gutierrez were involved in the packaging and resale of cocaine.  Appellant and his girlfriend accompanied Jalomo
and his girlfriend by airplane to Las Vegas for a six-day trip despite the fact
that neither he nor Jalomo was gainfully employed.  Throughout the house where Appellant had been
living for months, there was clearly present empirical evidence that its
inhabitants had been engaging in the packaging and resale of cocaine on a major
scale.  There were four kilograms of
cocaine stored in the attic, a plastic garbage bag containing five to ten used
containers for bricks of cocaine, at least four sets of digital scales (all
covered with a white powder residue), forty-one plastic baggies containing an
ounce of cocaine each for resale, multiple boxes of plastic baggies used for
resale of the cocaine and a semi-automatic rifle with two magazines for
protection.  
            Specifically, in Appellant's room alone, there was a
plastic container with Appellant's fingerprint that stored plastic baggies, a
set of digital scales with white powder residue, a bottle containing a
substance commonly used to cut cocaine, and an accumulation of white powder in
the bottom of the plastic container.  In
his room, Appellant also stored personal items, clothing, toiletries, court
documents, other legal documents and his airline baggage claim stub.  In Jalomo's room, a black ceramic plate used
to cut cocaine had Appellant's and Jalomo's fingerprints on its bottom and, in
Gutierrez's room, Appellant's fingerprint was found on a box of baking soda in
a plastic bag that also contained five to ten used containers for cocaine bricks.  Appellant's airline ticket stubs were also
found in Gutierrez's room.  In the
kitchen, Appellant's fingerprints were identified on a roll of plastic used to
heat seal money from the sale of cocaine for transportation to Mexico.  Further, when the police descended on the
house to execute their search warrant, Gutierrez immediately called to warn
Appellant and subsequently met Appellant to secrete Jalomo's BMW in an attempt
to avoid its forfeiture.  This evidence
reasonably implies that Appellant was not only knowledgeable of the drug operation
at the house but participated in every facet of the enterprise.  
            Based on the totality of the evidence, a jury could have
reasonably concluded that Appellant was a participant in
an ongoing criminal enterprise involving the possession of cocaine with intent
to deliver and he knew he was assisting the offense.  Although Gutierrez testified that Appellant
did not participate in the purchase of any cocaine, the jury's verdict
indicates they chose to believe the State's evidence and the reasonable
inferences that can be drawn from the entirety of the State's case to conclude
that Appellant took affirmative steps to assist, aid, and promote a criminal
enterprise involving Jalomo and Gutierrez. 

            Further, although Appellant may not have been present
when the five kilograms of cocaine were delivered, "[t]he Penal Code does
not require that the party actually participate in the commission of the
offense to be criminally responsible." 
Guevara, 152
S.W.3d at 51.  Neither does the
Penal Code "require that a party to the crime be physically present at the
commission of the offense."  Id. (citing Morrison v. State, 608 S.W.2d 233, 234 (Tex.Crim.App. 1980)).  Therefore, after examining all of the
evidence in the case in a light most favorable to the verdict, we conclude that
a rational jury could have found all the elements of an aiding theory of party
responsibility to be proven beyond a reasonable doubt.  Appellant's first two issues are overruled.
II.         Speedy Trial
            Appellant next asserts his right to a
speedy trial was violated by an eighteen month delay between the time he was
formally charged, July 24, 2008, and the date of his trial, February 1,
2010.  He also asserts his defense was
prejudiced because (1) he was without an attorney for more than five months
after he had been transferred from the Wheeler State Jail Unit in Hale County,
Texas, to the Randall County Jail in Amarillo, Texas, and (2) the delay in
bringing the charges to trial precluded him from securing a material witness. 
            A.        Standard of Review
            In reviewing the trial court's ruling
on Appellant's motion to dismiss for lack of speedy trial, we apply a
bifurcated standard of review:  an abuse
of discretion standard for factual components and a de novo standard for legal components.  Harrison v. State, 282 S.W.3d 718, 720 (Tex.App.--Amarillo 2009, no
pet.) (citing Cantu v. State, 253 S.W.3d 273, 282 (Tex.Crim.App. 2008)).  While our review necessarily involves factual
and legal conclusions, how these two interrelate "as a whole . . . is a
purely legal question."  Id. (quoting Cantu, 253
S.W.3d at 282).  This is
particularly so here where the facts are undisputed.
            B.  Barker Analysis
            Constitutional speedy-trial claims are analyzed on an ad hoc basis by weighing and then
balancing the four factors set forth in Barker
v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).  These four factors are:  (1) length of delay, (2) reason for delay,
(3) assertion of the right, and (4) prejudice to the accused.  Cantu,
253 S.W.3d at 280. 
We consider the four factors together along with the relevant
circumstances noting that no one factor possesses "talismanic
qualities."  Harrison, 282 S.W.3d at 721 (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002)).
            While the State has the burden of justifying the length
of the delay, the defendant has the burden of proving (1) the assertion of his
right to a speedy trial and (2) the showing of prejudice.  Id.
(citing Ex parte McKenzie, 491 S.W.2d
122, 123 (Tex.Crim.App. 1973)).  The
defendant's burden of proof on the latter two factors varies inversely with the
State's degree of culpability for the delay, i.e., the greater the State's bad
faith or official negligence and the longer its actions delay a trial, the less
a defendant must show actual prejudice or prove diligence in asserting his
right to a speedy trial.  Id. (citing Cantu, 253 S.W.3d at
280-81).
1.         Length
of Delay
            The Barker test
is triggered by a delay that is unreasonable enough to be presumptively
prejudicial.  Id. (citing Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686,
120 L.Ed.2d 520 (1992)).  While there is
no set time element that triggers a Barker
analysis, the Court of Criminal Appeals has held that a delay of four months is
insufficient while a seventeen-month delay is sufficient.  Cantu,
253 S.W.3d at 281 (collected cases cited therein). 
            Here, more than twenty-eight months passed between the
time of the offense and the time of trial and more than eighteen months passed
between the time formal charges were filed and the time of trial.  We find the length of delay factor weighs in
favor of Appellant.  Thus, we will consider
the three remaining Barker factors.
            2.  Reason for the Delay
            At the hearing on Appellant's speedy
trial motion, both the State and defense counsel recognized that Appellant's
case had simply "slipped through the cracks."  A "neutral" justification such as
an overcrowded docket or mere negligence "should be weighted less heavily
but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant."  Harrison, 282 S.W.3d at 721 (quoting Barker, 407 U.S. at 531).  See Murphy v. State, 280 S.W.3d 445, 453
(Tex.App.--Fort Worth 2009, pet. ref'd) (stating lack of explanation for the
delay weighs against the State but not greatly when there is no evidence that
the prosecutor purposefully engaged in dilatory tactics).  Appellant offered no evidence that the
State's delay was purposeful. 
Accordingly, given that (1) Appellant was not arrested on the date of
the alleged offense, (2) he was already incarcerated for another offense at the
time formal charges were filed, (3) he was bench warranted to Randall County
prior to completion of his state jail sentence in order to stand trial, (4) he
was accorded a jury trial within 10 months of being arraigned, and (5) there
was no evidence of a purposeful delay, we find the second Barker factor weighs only slightly in favor of a finding of a
speedy trial violation.  
            3.         Timeliness of Asserted Speedy Trial Claim
            The third factor is concerned with
the timeliness of a defendant's assertion of his right to a speedy trial.  See Harrison, 282 S.W.3d at 721 (citing Barker, 407 U.S. at 529). 
Although the defendant has no duty to bring himself to trial, he does
have a responsibility to assert his right to a speedy trial.  Cantu,
253 S.W.3d at 282. 
Nonetheless, filing for a dismissal before seeking a speedy trial
generally weakens a speedy trial claim because it indicates a desire to have no
trial instead of a speedy one.  Id. at 283.  When this occurs, the defendant should
provide cogent reasons for this failure to seek speedy trial before
dismissal.  Id.  
            When Appellant learned of the charges pending against him
in Randall County in July 2008, he was incarcerated at the Wheeler State Jail Unit.  He subsequently applied to be transferred to
the custody of the Randall County Sheriff and, in December 2008, was
transferred to the Randall County Jail. 
Four months passed before he was arraigned and requested an attorney.  An attorney was appointed in May 2009, and
Appellant filed his motion to dismiss for lack of a speedy trial in June 2009,
approximately a month later. 
            Given the delay between Appellant's transfer to Randall
County and his subsequent arraignment four months later, we cannot say that
Appellant unreasonably delayed in asserting his right to a speedy trial.  That said, however, Appellant provides no
explanation why he failed to seek a speedy trial before dismissal.  Accordingly, we find this factor weighs in
favor of neither party.  
            4.         Prejudice
            Because pretrial delay is often both inevitable and
wholly justifiable; Cantu, 253 S.W.3d
at 385, the fourth Barker factor
examines whether and to what extent the delay has prejudiced the
defendant.  Barker, 407 U.S. at 532.  Prejudice "should be addressed in the
light of the interests of the defendants which the
speedy trial right was designed to protect."  Id.  There are three such interests:  (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii)
to limit the possibility that the defense will be impaired.  Id.  
            Appellant did not assert prejudice based upon oppressive
pretrial incarceration or anxiety or concern. 
Rather, he asserts that, because of the delay, a potential witness was
unavailable.  To establish particularized
prejudice based on an unavailable witness, a defendant must present proof both
of the efforts made to locate the witness and that the witness would have
benefitted his defense.  Harrison, 282 S.W.3d
at 721.  Appellant did neither.[20]  Neither did Appellant present any evidence
establishing he was prejudiced by being without an attorney during the four
month period between when he was transferred to the Randall County Jail and his
subsequent arraignment.  Thus, he has failed
to establish particularized prejudice due to any delay.  This factor weighs against a finding of a
speedy trial violation. 
            E.        Weighing of Barker Factors
            While we are troubled by the ten month delay between the
execution of the original search warrant and the filing of formal charges, the eighteen
month delay between the filing of charges and the time of trial, as well as the
four month delay between Appellant's transfer to custody in the Randall County Jail
and his subsequent arraignment, we are cognizant of the fact that he was
already incarcerated for a previous crime during much of this time and he was
represented by counsel from May 2008 until his trial.  Further, prior to asserting his right to a
speedy trial, he never requested a trial setting, and at the hearing on his
motion, he failed to establish any particularized prejudice to his defense due
to the delay, oppressive pretrial incarceration, anxiety or concern, or any
cogent reason for his failure to seek a speedy trial before dismissal.  Accordingly, having weighed the Barker factors against the record, we
find the trial court did not err in denying Appellant's motion to dismiss for a
speedy trial violation.
Conclusion
            The
trial court's judgment is affirmed.  
                                                                        
Patrick A. Pirtle
                  Justice
 
Do not publish.
                                                                                                
 
 
 
 




[1]John
T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.  Tex. Gov't Code Ann. §
75.002(a)(1) (West 2005).


[2]See Tex. Health & Safety Code Ann. §
481.112 (a), (f) (West 2010).
 


[3]On
February 11, 2008, Appellant was arrested for alleged violations of his felony
probation in an unrelated cause.  On
March 26, 2008, his probation was revoked and he was sentenced to 18 months
State Jail in Cause No. 53,302-A, in the 47th District Court, Potter County,
Texas.


[4]At
trial, Gutierrez testified he lived at 6700 Hollywood Road at the time of the
search and he stayed in the northwest bedroom while Jalomo stayed in the
southeast bedroom and Appellant stayed in the northeast bedroom.  Gutierrez also testified that although Jalomo
paid the rent, that neither Jalomo nor Appellant were employed.  


[5]Douglas
Herrington, APD SWAT team member, testified that the roll of duct tape in the
living room matched packaging materials used on the unopened cocaine bricks in
the attic and packaging material on opened cocaine bricks throughout the house.


[6]Gutierrez
also testified that the heat sealing machine was used to package money obtained
from selling drugs prior to the money being delivered to Mexico.    


[7]Gutierrez
testified that he used his hands or a spoon to process or cut the cocaine in
Jalomo's bedroom using extenders such as baking soda on a plate similar to the
plate encrusted with cocaine.


[8]Christopher
Mayes, undercover narcotics officer, and Tommy Russell, APD narcotics agent,
testified that digital scales were commonly used by narcotics dealers to
measure quantities of drugs prior to resale.


[9]Gutierrez
testified the rifle belonged to Jalomo and was kept for protection.


[10]Gutierrez
testified that, shortly prior to the search, Appellant, Jalomo and their
girlfriends traveled together to Las Vegas, Nevada.  


[11]Christopher
Mayes, undercover narcotics officer, testified that Ziploc and sandwich baggies
were commonly found in houses utilized by narcotics dealers.  He indicated the plastic baggies were
normally used to package drugs for resale.


[12]Gutierrez
testified that Appellant "had his stuff
there," kept his clothes in his bedroom and slept there sometimes.  He also testified that he, Jalomo and
Appellant "pretty much kept [their] stuff in [their] own
room(s)."    


[13]Brandon
Conrad, manager of the Texas Department of Public Safety Crime Laboratory in
Amarillo, Texas, testified that cocaine was commonly cut or diluted using
baking soda, inositol, benzocaine and lidocaine.


[14]He
testified that each baggie was intended to contain an ounce or 28 to 30 grams
of cocaine after being weighed on digital scales.  He estimated one ounce of cocaine was worth
$500 to $600 on the street.  


[15]Gutierrez
ultimately pled guilty and was sentenced to 25 years confinement.


[16]Judge
Hervey delivered the opinion in Brooks,
joined by Judges Keller, Keasler and Cochran; and, Judge Cochran delivered a
concurring opinion, joined by Judge Womack. 
Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177
n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and
Cochran in Brooks as abandoning
factual sufficiency as an evidentiary sufficiency standard of review distinct
from legal sufficiency.


[17]The
previously-applied factual sufficiency standard considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury's verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict
is such that the jury's verdict is against the great weight and preponderance
of the evidence.  Grotti v. State, 273 S.W.3d 283
(Tex.Crim.App. 2008); Watson v. State,
204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006).  Under that standard, the ultimate question is
whether, considering all the evidence in a neutral light, the jury was
rationally justified in finding guilt beyond a reasonable doubt.  Grotti,
273 S.W.3d at 283. 
Even had we applied such a standard of review of the evidence, we could
not sustain Appellant's contention.  From
our review of the entire record, the finding of Appellant's guilt was neither clearly wrong and manifestly unjust nor against the
great weight and preponderance of the evidence.


[18]The
jury in this case returned a general verdict finding Appellant guilty of
unlawful possession of a controlled substance with intent to deliver as alleged
in the indictment. 


[19]Paragraph
9 of the charge stated, in pertinent part, as follows:
A person is criminally responsible
as a party to an offense if the offense is committed by his own conduct, by the
conduct of another for which he is criminally responsible, or by both.  Each party to an offense may be charged with
the commission of the offense.
A person is criminally responsible
for an offense committed by the conduct of another if, acting with intent to
promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.  
*    *   
*
In determining whether the
defendant participated in an offense as a party, the jury may examine the
events before, during, and after commission of the offense and may rely on any
actions by the defendant that show an understanding and common design to commit
the offense.


[20]At
trial, Appellant re-urged his motion to dismiss for lack of a speedy trial
based on the unavailability of two different witnesses but similarly failed to
present any evidence of particularized prejudice.


