                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00333-CR
                            ____________________

                           CHARLIE SMITH, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________             ______________

                    On Appeal from the 284th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-10-11588-CR
________________________________________________________             _____________

                           MEMORANDUM OPINION

      A jury found Charlie Smith guilty of two counts of engaging in organized

criminal activity, and the trial court sentenced him to life in prison for each count.

Smith filed this appeal.

      Smith argues that the evidence is insufficient to support a conviction on

either count of the offense of engaging in organized criminal activity. A person

engages in organized criminal activity if, with the intent to establish, maintain, or

participate in a combination or in the profits of a combination, he commits or

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conspires to commit one or more enumerated offenses, including theft. Tex. Penal

Code Ann. § 71.02(a) (West Supp. 2012). A “combination” requires three or more

persons who collaborate in carrying on criminal activities. Id. at § 71.01(a) (West

2011). To “collaborate in carrying on criminal activities” requires more than an

agreement to jointly commit a single crime. Nguyen v. State, 1 S.W.3d 694, 696-97

(Tex. Crim. App. 1999); Adams v. State, 40 S.W.3d 142, 144 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). There must be evidence of an agreement to

act together in this continuing course of activity. Ledet v. State, 177 S.W.3d 213,

218 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Direct evidence of intent is

not required; circumstantial evidence may be used. Id. (citing Hart v. State, 89

S.W.3d 61, 64 (Tex. Crim. App. 2002)).

       In addition to proving that Smith committed the underlying offenses with

two or more people, the State had to prove that Smith committed the underlying

offenses with the specific intent to “establish, maintain, participate in, or

participate in the profits of a combination.” Hart, 89 S.W.3d at 63-64. The State is

required to prove “continuity” -- that Smith and two or more people agreed “to

work together in a continuing course of criminal activities.” Nguyen, 1 S.W.3d at

697.




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      Smith does not challenge the sufficiency of the evidence to convict him of

the underlying April 6, 2010 offenses; he only challenges the sufficiency of the

evidence to convict him of engaging in organized criminal activity. The standard

for determining the sufficiency of the evidence under Jackson v. Virginia is

“whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury

resolves conflicts in testimony, weighs the evidence, and draws reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Hooper,

214 S.W.3d at 13.

       James Wall was driving a tractor trailer rig and delivering cigarettes and

candy to a retail store. Around 2 a.m., he drove around to the store’s loading dock.

He noticed a yellow moving truck parked in the area; no one was in the truck. He

got out of his truck and walked around the back of the tractor trailer rig. While

opening the first door, he was tackled from behind and knocked to the ground. The

two attackers were wearing dark uniforms, ski masks, and gloves. Wall’s hands

were duct-taped behind his back. He heard another vehicle approach, and he was

shoved onto the back seat floorboard of a pickup truck. Wall heard the men

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speaking on a radio. The driver drove him in the truck for about a minute, parked,

and then moved a little bit before stopping. Wall was in the truck for fifteen to

twenty minutes, and was ultimately pulled out of the truck. He fell to the ground

and his wallet was stolen. The men drove off. Wall suffered injuries as a result of

the attack.

      A GPS device planted in the stolen merchandise led authorities to a Houston

residence. Law enforcement arrived at the residence about five hours after Wall

was attacked and the merchandise was stolen. A yellow moving truck and a green,

extended-cab pickup with a white cargo trailer were parked at the residence. At

one point, Kenneth Adams was detained outside the residence. Adams said he

knew Smith, and Adams’s phone showed that Smith had called Adams.

      While law enforcement officials were waiting for a search warrant for the

house and vehicles, Smith arrived at the residence. Smith said he was on his way to

work and was going to check on his mother who lived in the neighborhood. Smith

identified himself as the owner of the pickup truck and trailer. He stated that the

reason the truck and trailer were at the residence was because he had let someone

he thought was named “Calvin” borrow them. Smith could not provide law

enforcement with the person’s phone number. Smith explained that his friend,

Derrick Pipkins, lived at the residence.

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      Once the search warrant was signed, law enforcement officials gained entry

into the residence. Wall’s wallet and approximately twenty cases of cigarettes were

found in the home. Inside one of the cases were a packing slip and a partial roll of

silver duct tape. Mail belonging to Pipkins was found in the house.

      Smith consented to the search of his pickup truck and trailer. The white

trailer appeared to be completely filled with cases of cigarettes. Approximately one

hundred and five cases of cigarettes were ultimately recovered. Two black masks

(one store-bought and one homemade) were recovered from the floorboard of the

pickup truck. Smith could not be excluded as a contributor of the DNA profile

obtained from one of the ski masks. A forensics expert testified at trial that the

probability of selecting an unrelated person at random who could be a contributor

to the DNA profile at all of the locations on the mask was “approximately 1 in

207.8 trillion for Caucasians; 1 in 2.635 trillion for blacks; and 1 in 534.2 trillion

for Hispanics.”

      The jury heard evidence of other criminal activities. Just past midnight on

August 25, 2010, a Texas City police officer noticed a suspicious van pulling out

from behind a tobacco business that the officer knew had been burglarized after

business hours on several occasions. After observing the driver committing a

traffic violation, the officer stopped the van. Smith was the driver and Larry

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Lawrence was a passenger. A walkie-talkie, crowbar, a homemade mask, and

brown gloves were in the vehicle. The occupants were separated and interviewed.

Smith said he was making a delivery to a supply company that the officer knew did

not exist in the city. Smith could not produce a delivery invoice. The rear door of

the business from which the van had left had been pried back. The van had been

reported stolen. Smith and Lawrence were arrested. Smith was charged with

attempted burglary of a building, unlawful use of a motor vehicle, and unlawful

use of criminal instrument.

      On September 7, 2010, Angel Hernandez, a driver delivering cigarettes,

drinks, and snacks, stopped at a convenience store in Harris County. He opened the

back of the truck and got inside to gather the items for delivery. A man, later

identified by Hernandez as Smith, jumped into the back; the man had a taser.

Smith told Hernandez to sit down and not look at him, and Smith began pushing

boxes of cigarettes. Smith and another man loaded thirteen boxes in a van.

Hernandez was able to see the van and its license plate. Smith was arrested, and a

van similar to that described by Hernandez was later located at Smith’s mother’s

residence. After obtaining consent to remove the van, law enforcement officials

found a taser, packaging tape, and insurance papers in Smith’s name.




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      The State presented evidence that Smith participated in thefts of cigarettes,

each time with other accomplices and a similar modus operandi. The heists

occurred over a five-month period and involved large quantities of cigarettes.

Pipkins owned the house where the cigarettes from the April 6, 2010 robbery were

recovered, and Kenneth Adams was arrested outside the home. From the evidence

presented, the jury could reasonably conclude that the offenses Smith participated

in were planned, that the perpetrators agreed to the continuous criminal activities,

and that the perpetrators intended to share the profits from the criminal enterprise.

The evidence is sufficient to support Smith’s conviction for engaging in organized

criminal activity to commit robbery and aggravated kidnapping. We overrule

Smith’s issue. The judgment is affirmed.

      AFFIRMED.


                                               ________________________________
                                                       DAVID GAULTNEY
                                                             Justice

Submitted on June 21, 3013
Opinion Delivered October 16, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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