                                   NO. 07-03-0102-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JANUARY 31, 2005

                          ______________________________


                         RAY LAYNE FERGUSON, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

               NO. 005871984; HONORABLE JACK R. MILLER, JUDGE

                          _______________________________

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


                                MEMORANDUM OPINION


       Appellant Ray Layne Ferguson appeals his conviction for delivery of a controlled

substance by constructive transfer. He contends that the evidence was legally and

factually insufficient to support the conviction, and that he received ineffective assistance

of counsel. We affirm.
                                     BACKGROUND


       Amy Yarbrough, working as a confidential informant for the Plainview Police

Department, agreed to assist Mandy Williamson, an undercover officer, in setting up a drug

transaction. Yarbrough made two phone calls to appellant. During the calls she spoke with

both appellant and appellant’s wife, Bonnie Rodriguez, and arranged to purchase cocaine.

As arranged, Rodriguez took Williamson’s money, borrowed Yarbrough’s vehicle to pick

up the drugs, and returned the cocaine to Williamson. Throughout the transaction,

Williamson wore a device which transmitted audio to other officers monitoring the deal.

After Williamson received the cocaine from Rodriguez, Williamson signaled the monitoring

officers who entered the residence and arrested appellant and Rodriguez.


       Appellant was tried and convicted by a jury for delivery of a controlled substance by

constructive transfer1 and sentenced to seven years imprisonment. Appellant appeals by

two issues.




       1
        The jury was charged that, “Constructive transfer of a controlled substance means
the transfer of a controlled substance, either belonging to the person charged or under his
direct or indirect control, by some other person or manner, at the instance or direction of
the person charged. In order to establish a constructive transfer by the person charged to
some other person, it must be shown that, prior to the alleged delivery, the transferor must
have either direct or indirect control of the substance transferred and that the transferor
knew of the existence of the transferee.” See Daniels v. State, 754 S.W.2d 214, 221-22
(Tex.Crim.App. 1988).

                                            -2-
                                ISSUE ONE: LEGAL AND
                     FACTUAL SUFFICIENCY OF THE EVIDENCE


      Appellant first asserts that the evidence was legally and factually insufficient to

support his conviction. He contends that, absent Yarbrough’s testimony, the evidence was

insufficient to support the conviction and that Yarbrough’s testimony may not be considered

because it was not corroborated. Appellant cites TEX . CRIM . PROC . CODE ANN . art. 38.141

(Vernon Supp. 2004)2 and Young v. State, 95 S.W.3d 448 (Tex.App.–Houston [1st Dist.]

2002, pet. ref’d), as support for his contention that Yarbrough’s testimony could not be

considered because it was not corroborated. Article 38.141 provides:


      (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.


       A confidential informant’s testimony is sufficiently corroborated if, setting aside the

informant’s testimony, the other inculpatory evidence, viewed in a light most favorable to

the verdict, tends to connect the accused to the commission of the offense, even if it does

not directly link the accused to the crime. See Cantelon v. State, 85 S.W.3d 457, 460-61

(Tex.App.–Austin 2002, no pet.).




        2
          Further references to the Texas Code of Criminal Procedure will be by reference
to “art. ___”.

                                             -3-
      Evidence is legally sufficient if, when viewed in the light most favorable to the jury’s

verdict, a rational jury could have found the essential elements of the offense, beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996).


      Evidence is factually sufficient if, when all of the evidence is considered in a neutral

light, a rational jury could have made a finding of guilt beyond a reasonable doubt. See

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).


      In conducting a sufficiency review of the evidence for corroboration of Yarbrough’s

testimony, we eliminate Yarbrough’s testimony from consideration and examine the

remaining record for evidence tending to connect appellant to the commission of the

offense. See Cantelon, 85 S.W.3d at 461. Although there is no precise rule stating the

amount of evidence necessary to corroborate an informant’s testimony, the “tends-to-

connect” standard does not present a high threshold. Id.           Circumstances which, if

considered individually, might not tend to connect a defendant to an offense, can tend to

connect a defendant to the offense when considered together. Id. at 460-61.


      In the present case, Rodriguez testified that appellant told Yarbrough, “We could

see, you know, if [Yarbrough] could come and pick up Bonnie [Rodriguez],” and then asked

Rodriguez “if [Rodriguez] wanted to go somewhere.” According to Rodriguez, appellant

was aware that Yarbrough was looking for “some stuff” which Rodriguez understood meant

drugs. Williamson testified that after Rodriguez returned with the cocaine, appellant

suggested everyone go inside to avoid possible police surveillance.


                                            -4-
        Without considering Yarbrough’s testimony, we conclude that, viewed in the light

most favorable to the verdict, the remaining evidence tends to connect appellant with the

offense. Thus, the evidence is sufficient to corroborate Yarbrough’s testimony as required

by art. 38.141.


        We next review the evidence, including Yarbrough’s testimony, for legal sufficiency.

Scott Williams, a chemist with the Texas Department of Public Safety’s laboratory, testified

that the substance sold to Williamson contained 1.64 grams of cocaine, a second degree

felony amount. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(c) (Vernon 2003).

Yarbrough testified that appellant told her during the phone call arranging the transaction

that,


“I don’t have any stuff, but I can make a phone call and I can get you some.” Appellant

also arranged for Yarbrough to let Rodriguez borrow Yarbrough’s car. Yarbrough testified

that she did not deal directly with Rodriguez initially because she was more comfortable

with appellant, and knew appellant could get her the cocaine. Finally, Yarbrough testified

that she believed Rodriguez was acting under appellant’s control.            Considering this

evidence in the light most favorable to the jury’s verdict, we conclude that the evidence was

sufficient to allow a rational jury to find the essential elements of the offense alleged beyond




                                              -5-
a reasonable doubt.3     See Jackson, 443 U.S. at 319; Clewis, 922 S.W.2d at 132.

Therefore, the evidence was legally sufficient to support the jury’s verdict.


       We next review the evidence for factual sufficiency. In doing so, we review all of the

evidence in a neutral light to determine whether a rational jury could have found appellant

guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484.


       In addition to evidence we have previously noted, Rodriguez testified that appellant

did not direct her to get the cocaine. She claimed that the transaction was her doing, and

pled guilty to the offense. However, the jury is the final judge of the weight and credibility

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

will not consider a jury’s findings unjust because the jury resolved conflicting views of the

evidence in favor of the State. Id. at 410. Hence, the jury could have resolved the

conflicting testimony by discounting Rodriguez’s testimony minimizing appellant’s role in

the transaction and believing the evidence portraying appellant as being in control of the

transaction.




       3
        A person commits the offense of delivery of a controlled substance if the person
intentionally or knowingly delivers, a controlled substance listed in Penalty Group 1. See
TEX . HEALTH & SAFETY CODE ANN . § 481.112 (Vernon 2003).

     Cocaine is a Penalty Group 1 controlled substance. See TEX . HEALTH & SAFETY
CODE ANN . § 481.102(3)(D) (Vernon 2003).

       Delivery can be by actual or constructive transfer. See TEX . HEALTH & SAFETY CODE
ANN . § 481.002(8) (Vernon 2003); See supra note 1.


                                             -6-
       Our review of the evidence leads us to conclude that (1) the evidence supporting the

verdict was not too weak to support a finding of guilt beyond a reasonable doubt, and (2)

the evidence contrary to the verdict was not so strong that the jury could not have found

appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. That

being so, the evidence was factually sufficient. Id.


       We overrule appellant’s first issue.


               ISSUE TWO: INEFFECTIVE ASSISTANCE OF COUNSEL


       By his second issue, appellant contends that his trial counsel provided ineffective

assistance by failing to (1) object to prosecutorial remarks during voir dire and closing; (2)

object to remarks of the presiding judge; (3) request a directed verdict; (4) request a

mistrial; (5) request a new trial; and (6) request probation from the judge after the jury

returned its verdict on punishment.


       A claim of ineffective assistance of counsel requires appellant to show (1) that

counsel’s performance was so deficient that counsel was not functioning as the “counsel”

guaranteed under the Sixth Amendment, and (2) that counsel’s deficient performance

prejudiced appellant, depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55

(Tex.Crim.App. 1986). To prevail in a claim of ineffective assistance of counsel, appellant

must prove both prongs of Strickland by a preponderance of the evidence. Tong v. State,

25 S.W.3d 707, 712 (Tex.Crim.App. 2000).



                                              -7-
       To successfully present an argument that counsel was ineffective because of a

failure to object to the State’s questioning and argument, appellant must show that the trial

court would have committed error in overruling such objection. See Vaughn v. State, 931

S.W.2d 564, 566 (Tex.Crim.App. 1996) (en banc). Appellant does not contend that the trial

court would have erred in overruling an objection to the challenged prosecutorial

comments.     He simply claims that the statements were manifestly improper.            This

contention does not present anything for review. Id.


       Further, although appellant claims that comments by the trial judge explaining why

he was sitting by assignment were prejudicial, he fails to cite supporting authority for his

contention or explain his failure to do so. See TEX . R. APP . P. 38.1(h); Rocha v. State, 16

S.W.3d 1, 20 (Tex.Crim.App. 2000) (argument that fails to cite supporting authority

presents nothing for review). This contention presents nothing for review.


       Appellant’s proposition that trial counsel should have moved for a directed verdict

or new trial relies on the assumption that Yarbrough’s testimony was inadequately

corroborated and that the evidence was legally and factually insufficient to support a guilty

verdict.   However, we have previously determined that Yarbrough’s testimony was

corroborated and that the evidence was sufficient to support the conviction. Hence,

appellant has not shown that he would have been entitled to a directed verdict or new trial

and that trial counsel’s performance prejudiced his defense. See Charleston v. State, 33

S.W.3d 96, 101 (Tex.App.–Texarkana 2000, pet. ref’d).




                                             -8-
      Regarding trial counsel’s failure to request a motion for mistrial or to request

probation from the trial judge after the jury’s verdict, appellant does not demonstrate or

contend that there was a reasonable probability that either a mistrial or probation would

have been granted. He has not shown that but for counsel's action the result of the

proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500

(Tex.Crim.App. 1996) (en banc); Miranda v. State, 993 S.W.2d 323, 329 (Tex.App.–Austin

1999, no pet.).


      Appellant has failed to show prejudice from trial counsel’s representation. Hence,

he has not met his burden to show ineffective assistance of counsel. See McFarland, 928

S.W.2d at 500. We overrule his second issue.


      Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                 Phil Johnson
                                                 Chief Justice
Do not publish.




                                           -9-
