NUMBER 13-11-00582-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ERWIN BURLEY, Appellant,

v.

THE STATE OF TEXAS, Appellee. 

 

On appeal from the 105th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Justice Rose Vela 

A jury convicted appellant, Erwin Burley, of possession of one gram or more, but 

less than four grams of cocaine in a drug-free zone, a third-degree felony. See TEX.

HEALTH & SAFETY CODE ANN. §§ 481.115(a), (c); 481.102(3)(D) (West 2010); § 481.134(c) 

(West Supp. 2012). After finding appellant had one previous felony conviction, the jury 

assessed punishment at fourteen years' imprisonment. By two issues, appellant 
2

asserts: (1) the evidence is legally and factually insufficient to sustain his conviction; and 

(2) the evidence is legally and factually insufficient to sustain the jury's finding that he 

committed the offense in a drug-free zone. We affirm.

I. BACKGROUND

A. State's Evidence

In August 2010, Albert Leal, a narcotics investigator for the Corpus Christi Police 

Department, received a complaint about possible drug activity in a duplex, which had two 

apartments. The apartment under suspicion was at 1430 16th Street. A confidential 

informant, whom police had previously searched and determined was not possessing 

drugs, was sent to the apartment and returned with narcotics. Afterwards, Investigator 

Leal obtained a search warrant, and he and other officers went to the apartment. Upon 

hearing a knock, Jacob Cibrian opened the door, and the officers entered the apartment. 

Investigator Leal saw appellant and an Hispanic male in the living room. During the 

search, police found "a baggy containing crack cocaine and marijuana that was found on 

the floor." Investigator Leal testified he found approximately $300 in Cibrian's 

possession. When the prosecutor asked Investigator Leal, "Do you frequently find large 

amounts of cash in crack houses on the people that are selling?", he said, "I wouldn't 

consider $300 large, but that's common for a drug house like that." When asked what 

was seized during the execution of the search warrant, he said, "We seized the 

surveillance cameras, the drugs and the cash that Cibrian had on his person."

Amy Arellano, a forensic scientist for the Texas Department of Public Safety, 

tested the drugs seized at the apartment. She testified the test showed "2.05 grams 
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containing cocaine."

Cibrian1testified he met appellant at a convenience store in Corpus Christi about 

six or seven months before the police searched the apartment. When the prosecutor 

asked Cibrian, "How did you and [appellant] come to be involved in drug sales at 1430 

16th Street?", he said:

We had, . . . met up at the store one time, and that's when I ran into 

him, when I met him. And he knew a couple of customers and I knew a 

couple of customers, and, . . . we both came to an agreement to open up, 

which is called a "dope house", to sell crack cocaine to people.

* * *

There were four duplexes and that was for rent, and we just called up the 

"for rent" number on there and that's when we went ahead and . . . 

contacted the landlord and we went ahead and rented it.

Because appellant did not have identification, he could not rent the apartment 

without Cibrian's help. Cibrian provided his ID to the landlord in order for appellant and 

him to rent the apartment. They paid the rent using the money they made from selling 

crack cocaine. With respect to profit sharing, Cibrian testified that appellant:

would get a good size amount of dope and cut in between and just divide it, 

which is, like, half for him and half for me. And then, I'd work one night or 

I'd work two nights, and then he would work a night or two nights. And we 

would—like when we make all the money together, then we'll put it together 

and we'd just split the profit.

Cibrian stated their drug-selling business was "pretty much continuously operating 

from the time" he "took out the lease until the police stopped it[.]" He and appellant 

packaged the cocaine and sold it in "$10" amounts. They bought a surveillance camera 

from one of appellant's friends and mounted it in the corner of the duplex, facing the 

 

1 With respect to Cibrian's involvement in this case, he had earlier pleaded guilty, without a plea 

agreement, and was placed on community supervision.
4

street. Cibrian testified that on the day the police searched the apartment, he arrived 

there earlier and saw the baggy of cocaine, which the police found on the floor, "[i]n the 

middle of the table . . . ." Before the police arrived, appellant sold some of the cocaine to 

customers. When Cibrian went to open the door for the police, appellant "stashed it [the 

baggy of cocaine] in the couch." When the police came in, appellant was by the couch.

Cibrian testified he was "sentenced" for possession of marihuana on two 

occasions; January 23, 2009 and August 25, 2010. He also had a conviction for assault 

causing bodily injury to his common-law wife.

B. Defense Evidence

Pastor Willie Simpson, who knew appellant for a couple of years, testified 

appellant did mainly "odd jobs" such as working with windows and scrap metal. He 

stated appellant lived on "10th Avenue in some apartments." 

Nicholas Montalvo, a real-estate owner, owned some fourplexes on 10th Street in 

Corpus Christi. When defense counsel asked him if appellant "live[d] there?", he said 

appellant "was there with different people, at times[,]" but "[h]e was not on a lease." 

Joyce Madden, the owner of the duplex where Cibrian and appellant were 

arrested, testified Cibrian and his wife, Amber, rented the apartment at 1430 16th Street. 

They were "on the lease," and Cibrian, who lived there approximately two years, paid the 

rent on a regular monthly basis. She never collected rent from appellant. However, she 

saw appellant there "quite frequently" and found his billfold, with his driver's license 

inside, in the living room of the apartment, underneath the carpet.

Appellant testified he worked as a "window cleaner" and never lived in the 
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apartment at 1430 16th Street. On June 7, 2010, he was in Dallas, Texas. At some 

point, he returned to Corpus Christi. Appellant explained that on the day the police 

searched the apartment, he was there, cleaning the yard. When he finished, he went 

into the apartment to get paid for his work. He was inside the apartment "just 

momentarily" when Investigator Leal came into the apartment with the search warrant. 

Appellant testified he did not use drugs, did not buy or sell "crack," and did not "know 

anything about a drug house."

When the prosecutor asked him, "[A]re you the same Erwin Phillip Burley that was 

convicted of a robbery in Georgia back in July of 1978, . . . ?", he said, "That's me. . . ." 

He also admitted he had a 2004 conviction in Dallas County for robbery and a 2001 

conviction in Dallas County for burglary of a vehicle. 

Dino Maysonet, a deputy at the McKenzie Annex Facility, testified that "the only 

thing I could say about Mr. Burley is, . . . his good conduct while he's been incarcerated." 

He stated that "at all times" appellant obeyed the rules and regulations.

II. DISCUSSION

A. Sufficiency of the Evidence

In issue one, appellant contends the evidence is legally and factually2insufficient 

to sustain his conviction.

1. Standard of Review

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

 

2

The court of criminal appeals has abolished factual-sufficiency review. See Howard v. State, 

333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). Thus, with respect to both of appellant's issues, we will 

only address his legal-sufficiency challenges. 
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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)). "Consequently, 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" committed the crime for which the jury found him guilty. See 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)). 

"Furthermore, '[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, 

then that evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d 

114, 116 (Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State, 

125 S.W.3d 436, 443 (Tex. Crim. App. 2002).
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In a prosecution for possession of a controlled substance, the State must prove the 

accused exercised care, custody, control, or management over the substance and that 

the accused knew the substance was contraband. See TEX. HEALTH & SAFETY CODE 

ANN. § 481.002(38) (West 2010) (stating "'Possession' means actual care, custody, 

control, or management"); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) 

(stating the accused must know "the matter possessed was contraband"). "'When the 

accused is not in exclusive possession of the place where the substance is found, it 

cannot be concluded that the accused had knowledge of and control over the contraband 

unless there are additional independent facts and circumstances which affirmatively link 

the accused to the contraband.'" Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. 

App. 2005) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). In 

Evans, the court of criminal appeals stated:

Regardless of whether the evidence is direct or circumstantial, it must 

establish that the defendant's connection with the drug was more than 

fortuitous. This is the so-called 'affirmative links' rule which protects the 

innocent bystander—a relative, friend, or even stranger to the actual 

possessor—from conviction merely because of his fortuitous proximity to 

someone else's drugs.

Evans, 202 S.W.3d at 161–62 (footnote omitted).

Relevant non-exclusive links tending to connect the accused to knowing 

possession include: (1) whether the accused was present when the search was 

conducted; (2) whether the contraband was in plain view; (3) whether the narcotic was in 

close proximity to and accessible by the accused; (4) whether the accused was under the 

influence of narcotics when arrested; (5) whether the accused possessed other 

contraband or narcotics when arrested; (6) whether the accused made incriminating 
8

statements when arrested; (7) whether the accused tried to flee; (8) whether the accused 

made furtive gestures; (9) whether there was an odor of contraband; (10) whether other 

contraband or drug paraphernalia was present; (11) whether the accused either owned or 

had the right to possess the place where the drugs were found; (12) whether the place 

where the drugs were found was enclosed; (13) whether the accused was found with a 

large amount of cash; and (14) whether the accused's conduct indicated a consciousness 

of guilt. Id. at 162 n.12; Isbell v. State, 246 S.W.3d 235, 238 (Tex. App.—Eastland 2007, 

no pet.). The legal issue with respect to these "links" is "'whether there was evidence of 

circumstances, in addition to mere presence, that would adequately justify the conclusion 

that the defendant knowingly possessed the substance.'" Evans, 202 S.W.3d at 162 n.9 

(quoting Evans, 202 S.W.3d at 166 (Womack, J., concurring)). "It is . . . not the number 

of links that is dispositive, but rather the logical force of all of the evidence, direct and 

circumstantial." Id. at 162. 

2. The Accomplice-Witness Rule

In Smith v. State, the court of criminal appeals stated that, "under Texas Code of 

Criminal Procedure Article 38.14, a conviction cannot stand on an accomplice witness's 

testimony unless the testimony is corroborated by other, non-accomplice evidence that 

tends to connect the accused to the offense." 332 S.W.3d 425, 439 (Tex. Crim. App. 

2011) (citing TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005)). "An accomplice is a 

person who participates in the offense before, during, or after its commission with the 

requisite mental state." Id. (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 

2007)). "Presence at the crime scene does not make a person an accomplice; an 
9

accomplice must have engaged in an affirmative act that promotes the commission of the 

offense that the accused committed." Id. (citing Druery, 225 S.W.3d at 498). "A person 

is not an accomplice if the person knew about the offense and failed to disclose it or 

helped the accused conceal it." Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. 

Crim. App. 1987); Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748 (Tex. 

Crim. App. 2006). "A witness who is indicted for the same offense or a lesser-included 

offense as the accused is an accomplice as a matter of law." Id.; Cocke, 201 S.W.3d at 

748.

In the instant case, it is undisputed that Cibrian, who sold drugs from the apartment 

at 1430 16th Street and who subsequently pleaded guilty for his participation, is an 

accomplice. See id. (stating that "[a]n accomplice is a person who participates in the 

offense before, during, or after its commission with the requisite mental state.") (citing 

Druery, 225 S.W.3d at 498). Thus, for appellant's conviction to rest upon Cibrian's 

testimony, "'there must simply be some non-accomplice evidence which tends to connect 

appellant to the commission of the offense alleged in the indictment.'" Brown v. State, 

270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (quoting McDuff v. State, 939 S.W.2d 607, 

613 (Tex. Crim. App. 1997)) (emphasis in original).

3. Sufficiency of the Non-Accomplice Evidence

"When reviewing the sufficiency of non-accomplice evidence under Article 38.14, 

we decide whether the inculpatory evidence tends to connect the accused to the 

commission of the offense." Id. at 442 (citing Brown v. State, 672 S.W.2d 487, 488 (Tex. 

Crim. App. 1984)). "The sufficiency of non-accomplice evidence is judged according to 
10

the particular facts and circumstances of each case." Id. (citing Reed v. State, 744 

S.W.2d 112, 126 (Tex. Crim. App. 1988)). "The direct or circumstantial non-accomplice 

evidence is sufficient corroboration if it shows that rational jurors could have found that it 

sufficiently tended to connect the accused to the offense." Id. (citing Simmons v. State, 

282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Reed, 744 S.W.2d at 126)). "[I]t is not 

appropriate for appellate courts to independently construe the non-accomplice evidence." 

Id. (citing Simmons, 282 S.W.3d at 508). Instead, we are required "to consider the 

combined force of all of the non-accomplice evidence that tends to connect the accused 

to the offense." Id. (citing Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 

1983)).

Here, to satisfy article 38.14, the State relied on the following non-accomplice 

evidence: (1) testimony that appellant was inside the apartment when the police entered 

it with the search warrant; (2) testimony that Investigator Leal did not see appellant enter 

the apartment (as appellant testified he did) just before he entered the apartment with the 

search warrant; (3) testimony that the baggy of cocaine was lying on the floor of the 

apartment in plain view; (4) testimony that prior to the time the police arrived at the 

apartment with the search warrant, appellant was frequently seen at the apartment. 

After considering the combined force of all of the non-accomplice evidence that tends to 

connect appellant to the offense, we hold the evidence is sufficient to tend to connect 

appellant to the offense for which he was convicted.

4. Analysis

Appellant's connection to the cocaine seized from the apartment was more than 
11

fortuitous. The evidence showed Cibrian and appellant were partners in a 

cocaine-selling operation conducted from the apartment. When Cibrian arrived at the 

apartment on the day the police searched it, appellant was inside the apartment, and the 

cocaine was on a table. When the police entered the apartment with the search warrant, 

appellant was still in the apartment, and the cocaine wound up on the floor in plain view. 

The amount of cocaine seized from the apartment constituted 2.05 grams.

"In an unlawful possession of a controlled substance case, . . . the control need not 

be exclusive, but can be jointly exercised with one or more persons." Cude v. State, 716 

S.W.2d 46, 47 (Tex. Crim. App. 1986). In this case, a rational jury could have reasonably 

concluded that appellant jointly possessed the cocaine in question for sale to customers. 

Accordingly, the evidence showed appellant knew the substance was contraband 

(cocaine) and that he exercised care, custody, control, or management over the 

substance. Viewing all of the evidence in the light most favorable to the verdict, as we 

must, a rational jury could have found beyond a reasonable doubt that appellant 

intentionally or knowingly possessed the cocaine that the officers found. See Jackson, 

443 U.S. at 319; Evans, 202 S.W.3d at 162 n.12. We hold the evidence is legally 

sufficient to support appellant's conviction. Issue one is overruled. 

B. Drug-Free Zone

In issue two, appellant contends the evidence is legally and factually insufficient to 

sustain the jury finding that he possessed the cocaine in a drug-free zone. The 

indictment alleged the offense occurred in a drug-free zone under section 481.134(c) of 

the Texas Health & Safety Code. Specifically, the indictment alleged, in relevant part:
12

JACOB CIBRIAN AND ERWIN BURLEY, defendants, on or about AUGUST 

12, 2010, in Nueces County, Texas, did then and there knowingly possess, 

with intent to deliver, a controlled substance, namely, COCAINE, in an 

amount of one gram or more but less than four grams, 

And it is further presented in and to said Court that the Defendant 

committed the above within 1,000 feet of real property owned by a school, 

namely Allen Elementary School, . . . .

Section 481.134(c) of the Texas Health and Safety Code provides, in relevant part, 

"The minimum term of confinement or imprisonment for an offense otherwise punishable 

under Section . . . 481.115(c)-(f), . . . is increased by five years" if committed in a drug-free 

zone. TEX. HEALTH & SAFETY CODE ANN. 481.134(c) (emphasis added). Appellant's 

conviction is for an offense under section 481.115(c), which is listed within the 

drug-free-zone statute in subsection (c) of article 481.134. See TEX. HEALTH & SAFETY 

CODE ANN. §§ 481.115(c), 481.134(c).

In this case, appellant was convicted of possession of one gram or more, but less 

than four grams of cocaine, a third-degree felony. See id. § 481.115(a), (c). "An 

individual adjudicated guilty of a felony of the third degree shall be punished by 

imprisonment in the Texas Department of Criminal Justice for any term of not more than 

10 years or less than 2 years." TEX. PENAL CODE ANN. § 12.34(a) (West 2011). Even 

assuming there is no evidence to support the jury's finding that appellant possessed the 

cocaine in a drug-free zone; i.e., within 1,000 feet of real property owned by a school, 

namely Allen Elementary School, this would have only affected the minimum punishment 

for a third-degree felony. However, the jury also found that appellant had one previous 

felony conviction. Thus, he was sentenced as a repeat-felony offender and received a 

fourteen-year sentence. Section 12.42 of the Texas Penal Code provides, in relevant 
13

part, that "[I]f it is shown on the trial of a felony of the third degree that the defendant has 

previously been finally convicted of a felony . . . on conviction the defendant shall be 

punished for a felony of the second degree." Id. § 12.42(a) (West Supp. 2012). "An 

individual adjudicated guilty of a felony of the second degree shall be punished by 

imprisonment in the Texas Department of Criminal Justice for any term of not more than 

20 years or less than two years." Id. § 12.33(a) (West 2011).

Appellant's conviction was enhanced from a third-degree felony to a 

second-degree felony, pursuant to section 12.42(a). And, his punishment fell within the 

punishment range of a second-degree felony. Accordingly, the issue whether the 

evidence is legally sufficient to support the jury's finding that appellant possessed the 

cocaine in a drug-free zone is irrelevant to the punishment and had no effect on 

appellant's sentence. Issue two is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed. 

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

31st day of August, 2012.