
                                          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.



