Opinion filed August 16, 2012



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00 224

- CR

__________ JOE LUTHER WILLIS, A ppellant

V.

STATE OF TEXAS , A ppellee

On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. 14039B

M E M O R A N D U M O P I N I O N
The jury convicted Joe Luther Willis of engaging in organized criminal activity and

as sessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice along with a fine of $250,000

. Because we disagree with Willis’s sole complaint that the evidence is insufficient to support the conviction, we affirm. In two issues, Willis chall enges both the legal and factual sufficiency of the evidence. The Court of Criminal Appeals in Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010), abandoned the factual sufficiency standard, and we need only consider the sufficiency of the eviden ce under the legal sufficiency standard.2 Background Facts The grand jury indicted Willis for engaging in organized criminal activity on or about March 1, 2005
, through April 1, 2007, with intent to establish, maintain, or participate in a
combination or the profits of a combination comprised of Willis and co defendants Linda Marie Turner, Emily Gwen Gonzalez, Anthony Lavelle Tate, and Cairra Lashonda Clark. The State alleged in the indictment that Willis conspired with his codefendants to commit the offe nse of possession with intent to deliver cocaine in an amount over 400 grams by agreeing to engage in
conduct that constituted that offense and that Willis performed an overt act in furtherance of th e agreement: he traveled to Fort Worth on September 28, 2006 , and was arrested on his way back
to his home in Mineral Wells with an amount of cocaine exceeding 4 grams but less than 200

grams. In spring 2005, Texas Department of Public Safety Sergeant Darla Dowell was asked by
the c ity m anager and by the c hief of p olice of Mineral Wells to investigate an area along 8 th Street in Mineral Wells where the sale of cocaine had become “open and rampant.” Sergeant
Dowell and six other officers began to conduct surveillance of the area. Sergeant Dowell
testified that narcotics were being sold in the street day and night, that there were people everywhere, and that the area had a “party atmosphere” with people standing around drinking
alcohol at all times

. Sergeant Dowell was the case agent in this investigation from its inception until about November 2005, at which time Michael Don ald Stoner took over the case

. Stoner later became a Texas Ranger
, but when he took over this investigation, he was a new member of
the Mineral Wells Narcotics Unit. Sergeant Dowell contin ued to assist in the investigation

. Sergeant Dowell’s main goal at the start of the investigation was to identify the individuals who were bringing crack cocaine into Mineral Wells. Sergeant Dowell worked closely with the U.S. Bureau of Alcohol, Tobacco, & Firearms (ATF) out of Fort Worth and originally planned to prosecute the suppliers in the f ederal c ourts. The testimony shows that

t here was an “outcry” from the community and that various i ndividuals came forward with
information to assist Sergeant Do well’s team. I ndividuals in the community identified the homes
where people were engaged in illegal activity. The investigators focused on identifying the
individuals who lived in the residences and who dealt drugs from those homes. Sergeant Dowell worked undercover and conduct ed “cold buys” in which she went into the area and attempted to purchase drugs without the use of an informant. Sergeant Dowell3

drove to 8 th S treet, stop ped in front of Willis’s ho use , and honk ed her car horn , and witho ut more, Clark came out of Willis’s house. Sergeant Dowell told Clark that she wanted to b u y a $20 “rock” of crack cocaine. Clark got into Sergeant Dowell’s vehicle and told Sergeant Dowell to drive up the street to Turner’s house. Sergeant Dowell drove to Turner’s house and gave Clark $20 in DPS funds

. Clark went into Turner’s house and came back with a $20 rock of crack
cocaine . Clark told Sergeant Dowell to contact her if she needed anything else. Sergeant Dowell
testified that “ [ i ] t was that easy” even though Sergeant Dowell did not know Clark prior to th e transaction

. Sergeant Dowell was able to buy drugs in this exact same way on several different
occasions

. In another incident, Sergeant Dowell drove to Willis ’s residence and saw that a group of people had gathered outside the house. An individual from the group rode over to her car on a bicycle and asked what she wanted. Sergeant Dowell asked for a $20 rock of cocaine, and the man produced one from his pocket and sold it to her. Se rgeant Dowell testified that buying the cocaine was easy and that anyone could have done it. Based on her surveillance of the area, many people did ; Sergeant Dowell witnessed many drug transactions take place in front of Willis’s home

. In addition to int erviews with informants and her own undercover work, Sergeant Dowell collected information by video surveillance

. Officers made the first video from a nearby property , and they recorded the video with a handheld camera . Later, the y obtained video by
usin g a “pole cam”

— a camera mounted on a utility pole

— that enable d the officers to monitor
activities from a remote location. They did not capture any audio recording during the investigation. By these various methods of intelligence gathering, the investiga tors eventually

were able to identify the loosely connected group of people who were involved in supplying the
crack cocaine to the area. Sergeant Dowell was able to develop an organizational chart for the enterprise based on her investigation. In this c ase, Sergeant Dowell represented the organization as a “spokes” or

“ w heel

- type organization” with no real hierarchy, no one person above anyone else. S he explained that it was not structured like a corporation, with a CEO, but that there was a common goal of the organization: to supply crack cocaine on 8 th Street in Mineral Wells. Sergeant Dowell identified Willis and his codefendants as the spokes of the wheel ; the y were the
five main distributors of crack cocaine to the area.4

Sergeant Dowell saw Clark, who lived with Willis , dealing drugs from Willis ’s house and
from Turner’s house. She also saw Willis and Turner meeting at Turner’s house and speaking to
each other on the street. Sergeant Dowell also saw Tate in front of Willis ’s house several times

. The investigators also saw him leaving Willis’s house at times when they knew Willis was there

. All five codefendants, including Willis , were seen dealing drugs in the street by delivering drugs

t hrough car windows. Sergeant Dowell observed meetings bet ween Willis and Turner, Clark and Willis, Clark and Turner, Tate and Willis, Tate and Clark, Gonzalez and Clark, and Gonzalez
and Turner. Defense counsel asked Sergeant Dowell how much crack cocaine a person would have to possess in order to show inten t t o distribute as opposed to intent to merely possess a controlled substance for personal use. Counsel asked whether there was a “breaking point”

— a specific amount of a drug that indicates a person has intent to distribute it. Sergeant Dowell answered,
“N o ,” and explained that
, even if a street dealer was found to have only a small amount of cocaine, that person would still be in possession of cocaine with an intent to deliver if he or she was observed making sales. Clark sold Sergeant Dowell one $20 rock. Sergeant Dowell explained that five rocks would cost $100 and would amount to approximat ely one gram of crack
cocaine. Ranger Stoner testified that in September 2005 he was working in the Narcotics Service of the Texas DPS and was assigned to Sergeant D owell’s i nvestigation in Mineral Wells. When Ranger Stoner first became involved with the investigation
, he went to the targeted area of 8 th
Street and saw that people crowd ed the street all day and all week long . They approach ed people who were driving down the street. At one place Ranger Stoner saw a large dip in the road

. He
noticed that
, if drivers slowed their vehicle s too much to pass through the dip, people from the

area walk ed toward the m to sell them drugs

. Ranger Stoner testified that it was the goal of the investigative team to identify and rid the town of drug suppliers. When Ranger Stoner began working on the team , I nvestigator Jeremy Clayton and Sergeant Dowell had already made undercover buys. Ranger Stoner explained the
circumstances s urrounding the use of confidential informants in cases of this nature

. John Joseph Polk was Ranger Stoner’s confidential informant for several months in this

case. Polk initiated contact with the police when he called and offe r ed information on a “major
cocaine dealer in Mineral Wells on Southeast 8 th Street.” Polk volunteered to meet with5

Ranger S toner and give him more information. Subsequently, Polk gave Ranger Stoner
information on all five codefendants in the case. Ranger Stoner used Polk to make d rug buys
from Willis

. On July 10, 2006, Polk was sen t to make a controlled buy from Willis at Willis ’s
house. On that occasion, Polk purchased about five rocks of crack cocaine for $100 from Willis

. As the investigation progressed, Polk informed Ranger Stoner that the drug supply was coming from Fort Worth. Polk identified a particular apartment unit in Fort Worth as the place
where Willis purchased drugs. Several attempts were made to follow Willis to the apartment in
Forth Worth and to stop him on t he way back to Mineral Wells. These efforts were unsuccessful
until September 28 , 2006

. At that time
, Ranger Stoner was driving on Interstate 20 from Fort
Worth to his home. Ranger Stoner came upon Willis’s “noticeable yellow or gold Cadillac

. ” Ranger Stoner c ontacted DPS and ATF and asked for assistance ; he began to follow Willis

. Ranger Stoner confirmed that Willis was in the car; he could also see a female passenger in the car but could not tell the identity of the female passenger. Willis drove t o the previously identified apartment in Fort Worth ; Ranger Stoner and other law enforcement followed him

. The
officers saw Willis and his passenger enter the apartment, stay about an hour, and then return to the vehicle . They dr ove down I nterstate 20 to ward Mineral Wells

. When Willis entered Parker County, Ranger Stoner contacted DPS Trooper Gary Allen
, and Trooper Allen stop ped Willis

. W hen he received the request for assistance , Trooper Allen parked his vehicle on the
shoulder of the interstate and set up stationary radar. Willis was traveling 70 miles per hour in a
65

- mile

- per

- hour zone, and Trooper Allen stopped him. Willis did not have a driver’s license ; Trooper Allen discovered that it had expired a year earlier. Willis gave Trooper Allen consent to
search the vehicle. A canine officer, Trooper Brian Roberts, arrived with a drug dog. The dog alerted to the front passenger seat of the vehicle. Trooper Allen asked Clark to step out of the vehicle, and though she was nervous and unres ponsive
, Clark eventually consent ed to a pat

- down search

. Trooper Allen did not touch Clark but did a visual check of her clothing. He saw a bulge in Clark’s back pocket and asked her what it was. She pulled a crack pipe out of he r pocket and
handed it to him. Trooper Allen arrested Clark for pos session of drug paraphernalia. Trooper Allen asked Clark if she had anything else. She denied there were any other drugs on her person, until Trooper Allen informed her that it wa s a separate offense to take d rugs into a penal institution

. Clark started crying and admitted that there were drugs in her6

undergarments. Trooper Allen requested that a female officer be dispatched to the scene to
search Clark. ATF Agent Melanie Finney searched Clark and found a ba g of crack cocaine inside Clark’s pants

. Clark was known to be Willis’s girlfriend. Trooper Allen asked Clark if she was hiding the drugs for Willis

. He told Clark not to “take the rap” if the drugs were not really her drugs

. Agent Finney testified that
, based on all of the information she had, including her past experience as an a gent in other drug cases, she suspected that the cocaine belonged to Willis and that he had asked Clark to hide it for him when the traffic stop began. Agent Finney interv iewed
Clark and obtained ad ditional information from her. Clark testified that Agent Finney ’s suspicion was correct

. Clark accompanied Willis to Fort Worth that day, but Willis purchased the cocaine. When Trooper Allen stopped Willis,
Willis asked Clark to put the cocaine in her pants. Clark did so because, at the time, she loved
Willis and would “do anything” for him. Clark was Willis’s girlfriend in 2006, and she was eighteen or nineteen years old. She lived with him on 8 th Street even thou gh the ho use was very small and had no utilities and no heat or air conditioning. Clark said that
, by living in a house
like that
, Willis “ [ p ] layed it off better” and was able to sell drugs for a longer period without getting caught. Clark testified that Willis h ad to “ [ r ] e

- up” his stock of cocaine every two to three days and that each time Willis would purchase a cookie of cocaine about the size of th e one that

was seized during the traffic stop. Willis made about $1
, 500 in drug sales every two to three days. Clark testified that the sale of crack cocaine was Willis’s sole source of income and that she had once counted $10,000 in his safe

. Clark said that she and Willis sold crack cocaine every day. If they did not have any drugs to sell, they could “score” f rom one of the ir codefendants. Willis also bought his supply from a man named “Doc” who lived in Fort Worth. Clark accompanied Willis to Doc’s apartment on the day of the traffic stop. She went inside the apartment with Willis but waited just inside the door of the apartment while he purchased the drugs. Clark nev er saw Doc face

- to

face.
Clark testified that she received a fifteen

- year sentence, the minimum sentence for the
offense for which she was indicted. She said that she did not expect any benefi t from her
testi mony against Willis

. Clark testified that she was not mad at Willis and that she still loved
him.7

Polk , Ranger Stoner’s confidential informant, corroborated much of Clark’s testimony.
Polk testified that he volunteered to help the investi gation because Willis was giving Polk’s mother drugs even though she was in poor health and had lost a leg to diabetes. Willis knew Polk’s mother was in bad health and gave her drugs anyway. Polk contacted Ranger Stoner in order to get Willis away from his mother. Polk knew Willis and had visited Willis’s home many
times ; they were old “dope

- smoking buddies .” Polk agreed to make controlled buys for the task force. In July 2006, officers picked him up and gave him $100 to purchase crack cocai ne from Willis

. Polk went to Willis’s house on 8 th
S treet; the officers searched him both before and after he went into the house. Polk went in and

g ave Willis the money
, and Willis gave Polk the drugs

. Polk left and turned the drugs over to the
officer s. During 2006, Polk was around Willis “all the time.” Willis al ways had crack cocaine, usually two or three ounces, throughout 2006 and 2007. Willis was in possession of that amount most of the time, and Polk saw him selling crack cocaine on many occas ions. Polk saw Clark
sell crack cocaine for Willis. Willis was often in possession of large sums of cash, though he had no job other than selling crack cocaine . Polk had been at Willis’s house on occasions when
Willis went to Fort Worth to buy drugs fro m a man called “Doc

. ” He had gone with Willis on several occasions; Willis usually bought two to three ounces and, on at least one occasion, bought three ounces in cookie form

. Polk testified that Willis would “re

- up” his supply of crack
cocaine once or twice a week

. The smallest quantity he ever saw Willis buy was one ounce. Polk testified that he knew Turner, Tate, and “all of them.” There was never any hostility among the group because there was enough demand so that everybody could make money.
Whe n one group ran short, they would buy from the others; they cooperated with each other to supply their customers with crack cocaine. In response to defense questions about a specific agreement between Willis and the others regarding the drug trade, Polk e xplained
, “ T hat’s not the way it works.” He testified that
there wa s no specific agreement regarding sp litting profit s

. It was not always an independent venture, but as far as profit

- splitting when the parties sold drugs together , each case was
different

.8

Ranger Stoner testified that he sent the substances from the controlled buys to the DPS lab for testing. State’s E xhibit No. 4 was from Polk’s purchase of cocaine from Willis on July 10, 2006. State’s E xhibit No. 6 was evidence taken from the Septem ber 28, 2006 traffic stop of Willis and Clark. DPS chemist William L. Todsen testified that he analyzed two sets of drug evidence in this case. Todsen found 0 .8 0 grams of material that contained cocaine in
S tate’s E xhibit No. 4. In State’s E xhibit No. 6 , Todsen found a k not t ed baggie that contain ed 16.42 grams of material including cocaine, a Ziploc that contain ed 0 .13 grams of cocaine, and a crack pipe that contain ed a trace amount of cocaine. The S tate rested after Todsen’s testimony
, and the defense rested without presenting any witnesses. Legal Sufficiency Appellant contends that the evidence was legally and factually insufficient to support the jury’s verdict of guilt

. He argues that the evidence was insufficient to prove either the existence
of a combination or the 400

- gram quantity of drugs that the parties conspired to possess with
intent to deliver

. The Court of Criminal Appeals in Brooks , 323 S.W.3d at 912, abandoned the factual sufficiency standard, and we need only consider the sufficiency of the evidence under the legal sufficiency standard. The standard of review for an appellate court in evaluating the legal sufficiency of the evidence is to determine whether any rational finder of fact could have found the existence of the elements of the offense after viewing all of the evidence in a light most favorable to the verdict. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Brooks , 323 S.W.3d 893;
Gibbs v. State , 819 S.W.2d 821, 834 (Tex. Crim. App. 1991). The appellate court ’ s duty is not to sit as a thirteenth juror reweighing the evidence or de ciding whether it believes the evidence established the elements in question beyond a reasonable doubt. Gibbs , 819 S.W.2d at 834; Blankenship v. State , 780 S.W.2d 198, 206

– 07 (Tex. Crim. App. 1988). In reviewing the evidence when the appellate court is fa ced with facts that support conflicting inferences, it must presume that the finder of fact resolved the conflict in favor of the verdict, and any
inconsistencies must be resolved in favor of the verdict. Farris v. State , 819 S.W.2d 490, 495 (Tex. Crim. A pp. 1990). A person engages in organized criminal activity if he commits or conspires to commit a felony offense with the intent to establish, maintain, or participate in either a combination or the profits of a combination. T EX

. P ENAL C ODE A NN

. § 71.02 (West Supp

. 201 2 ). The State alleged9

that Willis and his codefendants conspired to commit the offense of possession with the intent to deliver cocaine in an amount over 400 grams. And that Willis ’s overt act of this conspiracy was possession of cocaine i n the amount of more than 3 grams but less than 200 grams on September 28 , 2006. The State ’ s burden was to show more than the intent to possess with intent to deliver the cocaine; the State was required to prove Willis’s intent to establish, maintain, or participate in a combination

. Hart v. State , 89 S.W.3d 61, 63 (Tex. Crim. App. 2002). Combination is defined as “three or more persons who collaborate in carrying on criminal
activities.” T EX

. P ENAL C ODE A NN

. § 71.01(a) (West 2011).
Direct evidence of the intent to participate in a combination is not required. A jury may infer intent from any facts that tend to prove the combination ’ s existence, including the alleged
member ’ s words, acts, and conduct and the method of committing the enumerated offense. Manrique v. State , 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (M e yers, J., concurring). It is permissible to infer an agreement among a group working on a common project when each person’s action is consistent with realizing the common goal. McGee v. State , 909 S.W.2d 516, 518 (Tex. App.

— Tyler 1995, pet. ref ’ d). But proof of a single ad hoc effort is insufficient. See
Smith v. State , 36 S.W.3d 908, 910 (Tex. App.

— Houston [1s t Dist.] 2001, pet. ref ’ d) (evidence
that defendant was involved in a one

- time transaction is insufficient to establish an organized criminal activity). Instead, the combination must intend to engage in a continuing course of criminal activity. Nguyen v. State , 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). The evidence in this case shows that the five named parties were part of a loosely organized, but organized nonetheless, group that conspired to provide a continuous supply of
crack cocaine to the 8 th Stre et area over the course of at least two years. The five codefendants were seen dealing drugs and meeting with each other in the street. Ranger Stone r testified that all of the information that investigators received led them to the conclusion that Willis and
T urner were the main distributors in the area, assisted by the other three codefendants. There was evidence that Clark dealt drugs on behalf of Willis

. When Sergeant Dowell purchased drugs from Clark, Clark left Willis’s house and went to T urner ’s h ouse to procure the drugs. Cooperation in the criminal enterprise was necessary in this small

- town setting because “the people involved all knew each other” and any effort to shut one person out would shut them all
down. Ranger Sto ner testified that the t eam had observed the parties working together in drug transactions and that “ [ t ] hey’re using one another as a source.” Clark and Polk confirmed that10

the dealers shared their supply and worked together cooperatively to assure that customers always “ got ser ved. ” This evidence closely aligns with the Penal Code’s provision that
, in a combination
,

“ participants may stand in a wholesaler

- retailer or other arm ’ s

- length relationship in illicit distribution operations .” Section 71.01(a) (3)

. This was not merely an ad hoc criminal effort; the evidence shows that the combination engaged in a course of continuing criminal conduct for

years. V iewing all of the evidence in a light most favorable to the verdict
, a rational factfinder
could have found that Willis parti cipated with the others as alleged in the indictment. Willis also argues that the S tate’s evidence was insufficient because no rational factfinder could have found beyond a reasonable doubt “the element of more than 400 grams of cocaine.” The State did n ot allege actual possession of 400 grams of cocaine. Instead, it alleged that Willis “conspire[d] to commit the offense of possession with intent to distribute a controlled substance, namely cocaine, in an amount over 400 grams.”

“ The offense of engaging in organized criminal activity is drafted in such a way that the predicate offense need not be completed. ” Underwood v. State , 967 S.W.2d 925, 930 (Tex. App.

— Beaumont, 1998, pet. ref’d). “ ‘Conspires to commit’ means that a person agrees with one or

more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from t he acts of the parties.” Section 71.01(b)

. The overt act in pursuance of the conspiracy need not itself be a
criminal act. Barber v. State , 764 S.W.2d 232, 235 (Tex. Crim. App. 1988)

. The S tate was not required to show that Willis actually completed the predicate offense of possession with intent to distribute 400 grams of crack cocaine. The State was only required to prove that Willis conspired to commit the offense. Proof that Willis and his codefendants had
the intent to possess (with the intent to distribute) the de sig nated amount would likely be
sufficient

. However, the jury could have inferred that Willis met, and even exceeded, the 400

- gram goal of the enterprise. The evidence at trial showed that Willis delivered a great deal of
crack coca ine each week. The State points out that, extrapolating from the testimony given at trial, if Willis bought and sold about sixteen grams per week for the two years covered by the investigation
, he would have purchased and delivered over 3 , 000 grams of coc aine. Willis had a large amount of cash on hand even though he had no other source of income. He was observed11

selling, or having Clark sell on his behalf, all day and every day for years

. He was observed making a buy from his supplier and was found with cocaine in his po ssession on September 28, 2006, which constituted an overt act in furtherance of the conspiracy. The evidence was sufficient to support Willis’s conviction , and his issues are overruled. The judgment of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE

August 16, 2012 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.