                             NUMBER 13-12-00464-CR

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG


JIMMY RAY AKINS
A/K/A JIMMY AKINS,                                                            Appellant,


                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 415th District Court
                          of Parker County, Texas.


                           MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Valdez
       By three issues, appellant, Jimmy Ray Akins a/k/a Jimmy Akins, challenges his

conviction for delivery of a controlled substance, methamphetamine. TEX HEALTH &

SAFETY CODE ANN. § 481.112(a) (West 2010). Appellant contends that the evidence

was legally insufficient to support his conviction, and that the trial court erred by denying
his motion to dismiss because the prosecutor made prejudicial comments during closing

arguments. We affirm.1

                                      I.     BACKGROUND

       Undercover police officer Christopher Negrete arranged to purchase one gram of

methamphetamine from Kathryn Robinson at her residence.                   Upon arriving at this

residence, Officer Negrete entered Robinson’s bedroom where he found Robinson, who

was sitting on the bed, another unidentified female, and appellant. The officer sat next

to Robinson, who then handed him a small baggie of methamphetamine.                        Officer

Negrete asked Robinson if the baggie “weighed out” to the previously agreed amount of

one gram.

       Robinson then retrieved a digital scale from her nightstand and repeatedly tried

to get an accurate reading on the weight of the baggie. Robinson was unable to get the

scale to function property on an adjacent table. At this point, appellant leaned over,

grabbed the baggie of methamphetamine off of the scale, and stated that the digital

scale “had to be on a flat surface.” Appellant then proceeded to place the baggie back

on the scale in an attempt to get an accurate reading.

       Appellant, who was previously unknown to the officer, was able to get a reading

of 1.3 grams on the scale. Robinson then grabbed the baggie of methamphetamine

and handed it directly to Officer Negrete. Officer Negrete testified that appellant both

“aided” and “assisted” Robinson “in this drug transaction.” Officer Negrete then handed

Robinson the agreed upon amount of $100 for the drugs and left the residence. The

baggie was later found to contain .86 grams of methamphetamine.                   Appellant was

       1
          This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).


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indicted for delivery of a controlled substance. TEX HEALTH & SAFETY CODE ANN. §

481.112(a). The case went to trial and a jury found appellant guilty of the offense and,

after a punishment phase, assessed his punishment at fifteen years’ imprisonment and

an $8,000 fine. Appellant now appeals the conviction.

                                 II.     LEGAL SUFFICIENCY

       By his first issue, appellant contends that there was insufficient evidence to

support his conviction as a party to the charged offense. Appellant argues that the trial

court, therefore, erred by failing to grant a directed verdict of acquittal.

   A. Standard of Review

       “When reviewing a case for legal sufficiency, we view all of the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Winfrey v.

State, 323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). Accordingly, “we ‘determine whether the necessary inferences

are reasonable based upon the combined and cumulative force of all the evidence when

viewed in the light most favorable to the verdict.’” Id. at 879 (quoting Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16–

17 (Tex. Crim. App. 2007)). “It has been said quite appropriately, that ‘[t]he appellate

scales are supposed to be weighted in favor of upholding a trial court's judgment of

conviction, and this weighting includes, for example, the highly deferential standard of

review for legal-sufficiency claims.’” Id. (quoting Haynes v. State, 273 S.W.3d 183, 195

(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). “We

must therefore determine whether the evidence presented to the jury, viewed in the light

most favorable to the verdict, proves beyond a reasonable doubt that appellant”


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committed the crime for which the jury found him guilty. Id. “It is the obligation and

responsibility of appellate courts ‘to ensure that the evidence presented actually

supports a conclusion that the defendant committed the crime that was charged.’” Id. at

882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)).        The hypothetically correct jury charge is one that

“accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.” Malik, 953 S.W.2d at 240.

      Additionally, in our analysis of the verdict, we recognize that the jury is the

exclusive judge of the credibility of the witnesses and the weight to be given their

testimony. Ozuna v. State, 199 S.W.3d 601, 610 (Tex. App.—Corpus Christi 2006, no

pet.). The jury may accept or reject all or part of the evidence. Id. The jury may also

draw reasonable inferences and make reasonable deductions from the evidence. Id.

   B. Applicable Law

      The offense of delivery of a controlled substance is defined as follows: “Except

as authorized by this chapter, a person commits an offense if the person knowingly

manufactures, delivers, or possesses with intent to deliver a controlled substance listed

in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a).

       “In order to prove that an accused acted as a party to the offense, the State

must prove that the accused acted with intent to promote or assist in the commission of


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the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other

person in its commission. TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011); Martin v.

State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The law of parties applies to a

prosecution for delivery of a controlled substance. See Boyer v. State, 801 S.W.2d 897,

899 (Tex. Crim. App. 1991) (concluding that law of parties applies when two of the three

parties are an informant and police officer); Gonzalez v. State, 838 S.W.2d 770, 771

(Tex. App.—Corpus Christi 1992, no pet.); Robinson v. State, 815 S.W.2d 361, 363

(Tex. App.—Austin 1991, writ ref’d).

       Evidence is sufficient to convict under the law of parties where the defendant is

physically present at the commission of the offense and encourages its commission by

words or other agreement. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.

1985). “In determining whether the accused participated as a party, the court may look

to 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.” Id. Further, circumstantial evidence may be used to prove party

status. Id.

   C. Discussion

       As previously outlined, the State’s evidence at trial indicated that appellant did

not directly transfer the methamphetamine to the officer.        However, a person is

criminally responsible for an offense committed by another if, acting with intent to

promote or assist in the commission of the offense, he encourages, aids, or attempts to

aid the other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2); Martin,

753 S.W.2d at 387. Evidence of mere presence or encouragement is sufficient to prove

that a defendant is a party to a transaction. See Cordova, 698 S.W.2d at 111. In this


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case, appellant was not only present but physically handled and helped weigh the drugs

in question. Appellant, in his brief, argues that the State failed to present evidence that

he knew that the contraband that he witnessed the transfer of and helped weigh was

illegal.     However, the jury was entitled to rely on circumstantial evidence of the

defendant’s actions and the events occurring before, during, and after, the transaction in

its determination. See id. From the evidence, it is clear that the drugs were in plain

sight and in fact physically handled by appellant and that appellant was aware of the

transaction. This was sufficient evidence for the jury to determine that he was a party to

the delivery of methamphetamine, and we cannot replace its judgment with our own.

See id.; see also Ozuna, 199 S.W.3d at 610.

           We overrule appellant’s first issue.

                                  III.   IMPROPER ARGUMENT

           In his second and third issues, appellant contends that the trial court erred by

denying his two motions for mistrial made after the trial court sustained objections to

comments made by the prosecutor during closing argument.                Assuming without

deciding that errors occurred, we find that they were cured by the trial court’s

instructions to disregard.

           A. Applicable Law

           We review the determination of whether the trial court erred by denying

appellant’s motion for a mistrial using an abuse of discretion standard. Ladd v. State, 3

S.W.3d 547, 567 (Tex. Crim. App. 1999).

           The approved general areas of jury argument are:         (1) summation of the

evidence, (2) reasonable deductions from the evidence, (3) answer to argument of

opposing counsel, and (4) plea for law enforcement. Hathorn v. State, 848 S.W.2d 101,


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117 (Tex. Crim. App. 1992). Neither the trial judge nor the prosecutor can comment on

the failure of an accused to testify. Such a comment violates the privilege against self-

incrimination and the freedom from being compelled to testify contained in the Fifth

Amendment of the United States Constitution and Article I, section 10, of the Texas

Constitution.   Bustamante v. State, 48 S.W.3d 761, 767 (Tex. Crim. App. 2001).

However, a mistrial is not warranted if “the language might be construed as an implied

or indirect allusion” to the defendant’s failure to testify. Id.

       However, even when an argument exceeds the permissible bounds of these

approved areas, such will not constitute reversible error unless, in light of the record as

a whole, the argument is extreme or manifestly improper, violative of a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding.” Todd v.

State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980). “The remarks must have been

a willful and calculated effort on the part of the State to deprive appellant of a fair and

impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997).

       In determining whether a mistrial should have been granted for improper jury

argument we consider the factors stated by the court of criminal appeals in Mosely v.

State: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the

prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction). 983 S.W.2d 249,

259 (Tex. Crim. App. 1998). In most instances, an instruction to disregard the remarks

will cure the error. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994)

(“[A]n instruction to disregard will cure such error unless the prosecutor's remark was so




                                                7
inflammatory that its prejudicial effect could not reasonably be overcome by such an

instruction.”); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992).

       B. Discussion

       Appellant first contends that the State made a speculative statement about what

a witness might have recounted had she been called, which was not based on evidence

in the record.     See Hathorn, 848 S.W.2d at 117.           Appellant complains of the

prosecutor’s comment during closing arguments regarding Kathryn Robinson, the

person who actually transferred the methamphetamine to the officer. The prosecutor

stated, “But if they wanted to subpoena Kathryn Robinson, they could do it. Yeah, I

was—Kathryn Robinson: I was there, I had a dope deal with Carlos and we did it.

That’s what you were going to hear because that’s what happened.” The trial court

sustained defense counsel’s objection to this comment and issued an instruction to the

jury disregard it. Analyzing the Mosely factors: (1) if the prosecutor did commit error, it

was not overly prejudicial as he merely argued that Robinson’s testimony would not

contradict evidence already in the record, the testimony of the officer; (2) the trial court

issued an instruction to disregard; and (3) the State elicited testimony from the officer

involved in the transactions who identified the appellant as being present at the deal

and handling the methamphetamine; therefore, the strength of the evidence supporting

the conviction was relatively strong. See Mosley, 983 S.W.2d at 259. Accordingly, we

find the instruction to disregard this comment sufficient to cure error, if any occurred.

Wilkerson, 881 S.W.2d at 324; Cooks, 844 S.W.2d at 727.

       Next, appellant contends that the prosecutor made a prejudicial comment on

appellant’s failure to testify.   See Bustamante, 48 S.W.3d at 767.         During closing

arguments, the prosecutor stated “You don’t have any evidence, not one single bit of


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evidence that Jimmy Ray Akins did not pick up the baggy of meth, did not pick it up,

place it on the scale….”    The trial court sustained defense counsel’s objection to this

comment, and issued an instruction to the jury to disregard it. Considering that this was

at most an indirect comment on appellant’s decision to not testify and, therefore was not

overly prejudicial, and that the evidence supporting appellant’s conviction was relatively

strong, we find the instruction to disregard sufficient to cure error, if any occurred. See

Mosley, 983 S.W.2d at 259; see also Wilkerson, 881 S.W.2d at 324; Cooks, 844 S.W.2d

at 727.

       We overrule appellant’s second and third issues.

                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                   __________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of August, 2013.




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