1 See Tex. Health & Safety Code Ann. § 48 1.134(b) (Vernon Supp. 20 05). NO. 07-04-0361-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A SEPTEMBER 23, 2005

______________________________ SCOTTY HEREFORD, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 137 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-404,809; HONORABLE C ECIL G. PURY EAR, JUDGE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. MEMORA NDUM OPIN ION Appel lantSco tty Herefor d brings t his appeal from hi s convic tion for the felony offe nse of possession of a co ntrolled substance with intent to deli ver. Puni shment, enhanced because the offense was committed in a drug free zone, 1 was asses sed by the jury at 40 years confineme nt. We wil l affir m. Appellant

was char

ged as a resultof a “buy/bust” operation cond ucted by members of the multi-a ge ncy South Pl ains Drug Task Force. Officers wer e worki ng wit h an2

informant

named Karron Hays who was helping poli ce in exchang e for the dismiss al of unrelated pending char ges. The operat ion began w ith officer Jane Jo plin searchi ng Hays for contraband and attaching a hidden microphone to her. Officers also recorded the s erial numbers of currency

and provid ed it to Hay

s for the purchase of drugs. After othe r officers positioned themsel ves nearby , Joplin drov e Hays to the Sunset Motel in Lubbock. The events descr ibed b y Hays an d Jop lin af ter t heir arriva l varie d sligh tly. Ha ys testified she got out of the car and knocked on the door of a room looking for a drug sell er named Kim. When no one answered she returned to the car w here appellant ap proached her and she purc hased cocaine from him. According to Joplin, appellant initially approached the driver’s door w here Joplin w as seated. Without speaking to app ella nt, Joplin poin ted t o Hays in the passeng er seat. Appella nt walked to the passenger side of the car, where Hays got out to speak with appellant. None of the of ficers were abl e to see exactly what trans pired between appellant and H ays. The State introduced a r ecording from the microphone at tached to Hays. The recordi ng sho ws Hay s asked unidenti fied people if they

knew Kim. They can be hear d saying they had not s een Kim for some time. W ithin seconds, Hays is heard asking, “Do you have anything?” A male voice responds aff irma tivel y, an ag reement is made and H ays is hea rd counting to 100 in incr ements of 20. She can then be hear d returning to the car and pointi ng out the pers on from whom she made the purchase. The entire recor ding lasts

less th an a minute . Both wi tnesses testified when H ays got back i n the car she gave Joplin a packa ge containin g cocaine. The on ly othe r off icer wh o was a ble t o see the t rans acti on, V an Ro y Pierc e, wa s across th e3

street

. As she drove away, officer Joplin signaled the other officers who immediately arrested appel lant. Upon searching appellant, officers did not find any dr ugs. T he ca sh give n to H ays was located on the ground nearby. Off icer Pierc e tes tifi ed no one else w as in the immediate area where the cash was recovered. The State presented testi mony from a Cit y of Lubbock planner that the Sunset Motel was wit hin 1,000 feet of a school , making it a drug free zone. It also call ed a Department of Publ ic Safety lab oratory technician w ho tested the substance purchased by Hays and found it co ntained c ocaine. At the conclusion of the State’s case, the trial court denied appellant’s mot ion for in s tructed verdict. The jury found appe llant guil ty and punishment was assessed i n conformity w ith its ver dict at 40 years confinement. Appellant

presents a si ngle issuechallengi ng the tria l court’s denial of his moti on for instructed v

erdict on the b asis the State failed to present evidence corroborating the tes timony

of the informant. We treat such a complai nt as a challe nge to the leg al sufficiency of the evidence. Williams v. State , 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In considering appellant’s l egal insuffici enc y challen ge, we ar e required to view

the evidence in a light mos t favorable to the prosecution and then determine if any rati onal trier of fac t cou ld ha ve found the essential elements of the offense beyond a reasonable do ubt. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789, 61 L.Ed.2d. 560 ( 1979). Appellant’s sufficiency c ha lle nge is based on application of article 38.141 of the Texas Code of Crimina l Procedure. That statute prov ides a person may not be convicted4

of an offense for possessio n or deliver y of a control led substance, d efined in Chapter 481 of the Health and Safety Code, on the testim ony of a person “acting covertly on behalf of a law enforcement agency” unless the testimo ny is co rroborated by “other evidence tending to connect the def endant with the off ense committed.” Id. The statute prov ides corroborati on is not sufficient if it only shows the commission of the offense. Id.
In review ing the sufficie ncy of corr oboration, cour

ts have applied the same stand ard as is applied w hen a convic tion is based on accom plice wi tness testimony

. Cantelon v. State , 85 S.W.3d 457, 460 (Tex.App.–Austi n 2002, no pet.); see Dennis v. State , 151 S.W.3d 745, 748-49 (Tex.App.–A marillo 2004, pet. ref’d ). That standard requires a review ing court to eli minate the informant’ s testimony and ask whe ther

other inculpatory evidence tends to connect the accused to the commissi on of the offense, even if it does notdirectly

link the acc used to the cri me. Cantelon, 85 S.W.3d at 461, cit ing McDuff v. State , 939 S.W.2d 607, 612 (Tex.Crim. App. 1997). T here i s no precise rule stating the amountof evidence necessa ry to corroborate an informant's testimony, but t he "tends-to-connec

t" standard does not

present a hig h threshold. Cantelon , 85 S.W.3d a t 461. Appellant ar

gues that w hen the testimony of Karron Hays is eliminated, “there is nothing that tends to connect”appellant w ith the sale of co caine. We do not agree. The other

evidence showed Hay

s did not posses s any cocai ne when she arrived at the mote l w ith off icer Jopli n, but provi ded a package of cocaine to Joplin on returning to the car. Both Joplin and Pierce testi fied Hays phy sically interacted w ith only o ne person2 Joplin also identified appell ant, but her test imony indicated the identification was

based in part on se eing app ellant a t a prior he aring.

3 Pierce’s testimony

identifying appellant

as the person heobserved i nteracting with Hays and police tes timony identi fying appell ant’s voi ce on the recor ding made of the transaction distinguish this case fr om Young v. State , 95 S.W.3d 448 (Tex.App.–Ho uston [1 stDist.] 2002, pet. ref’d). There, no one but the informant testi fied to the drug transaction or identified thedefendant’s voi ce on the incriminating tape recording

. Id . at 450. 5 while she was out

side the car. Pi erce identified appellant as that person. 2 The testimony of the officers was confirme d by the audio recording played for the jury. Another offic er identif ied app ellant’ s voice fro m the re cording. 3 Appellant

emphasizes t hatthe currency issued to Hay

s was not found on appellant. The evid ence sh owed those b illswer e found on the g round w ithin mi nutes of the transaction. As noted, Pier ce testified no one butappellant was in the immediate areaand that, from Pierce’sobservati on, no one but appellant coul d have placed the money ther e. This testimony

providesadditional co rroboration connecting app ellant to the offense.
We find the testimony ofKarron Hays was sufficiently corrobora t ed by other evidence tending to connect appell ant with the offense. The eviden ce was not rendered legally insufficient

by the absence of corroborati on require d by arti cle 38.141. W e overrule appellant’s s ingle point of error and affirm th e judgment of the trial court.

James T. Campbell Justice Do not publish

.