NO. 07-10-0231-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL E 

 SEPTEMBER 27, 2011 

ISAAC RODRIGUEZ, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2009-422,779; HONORABLE CECIL PURYEAR, JUDGE 

Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1

MEMORANDUM OPINION

Following a jury trial, Appellant, Isaac Rodriguez, was convicted of the offense of 

possession with intent to deliver a controlled substance (cocaine), four grams or more 

but less than 200 grams, a first degree felony,2 and sentenced to thirty years. By six 

issues, Appellant contests the legal and factual sufficiency of the evidence to support 

the findings of "knowing possession of a controlled substance" and "intent to deliver" 

 

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

Tex. Health & Safety Code Ann. § 481.112(d) (West 2010). 
2 

(issues one, two, five and six), and he contends the trial court erred in not treating the 

testimony of the State's key witness as a "covert witness" pursuant to article 38.141 of 

the Texas Code of Criminal Procedure (issues three and four). We affirm. 

Background 

Appellant and his sister, Sonia Rodriguez, lived together in an apartment located 

in Lubbock County. Sonia became suspicious when Appellant engaged in suspicious 

activities and started keeping "questionable" friends. She initiated a search of his 

bedroom where she found a paper bag, containing plastic bags, containing a white 

powdery substance she suspected as being a controlled substance. After consulting 

with her parents, she eventually turned the paper bag and its contents over to law 

enforcement. Although the apartment was never searched by law enforcement officials, 

the contents of the paper bag were tested and found to consist of 133.9 grams of a 

substance containing cocaine. Sonia cooperated with law enforcement by explaining 

the circumstances whereby she came into possession of the paper bag and, eventually, 

this prosecution ensued. 

Issues One, Two, Five and Six - Sufficiency of the Evidence 

We review challenges to the sufficiency of the evidence under the standards 

discussed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) 

and Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). We refer the parties to 

those cases. 

 To prove the offense charged, the State had to show that Appellant knowingly 

exercised care, custody or control over what he knew to be a controlled substance, and 
3 

that he did so with the intent Ato transfer [the substance], actually or constructively, to 

another . . . .@ Tex. Health & Safety Code Ann. '§ 481.002(8), 481.002(38) and 

481.112(a) (West 2010). We review challenges to "knowing" possession and "intent to 

deliver" by reviewing various factors discussed in Evans v. State, 202 S.W.3d 158, 162 

(Tex.Crim.App. 2006) (discussing a non-exclusive list of factors that Texas courts have 

recognized as sufficient, either singly or in combination, to establish possession of a 

controlled substance); Triplett v. State, 292 S.W.3d 205, 208-09 (Tex.App.--Amarillo 

2009, pet. ref'd) (discussing same); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-- 

Houston [14th Dist.] 2005, no pet.) (discussing same); and, Williams v. State, 902 

S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d) (discussing factors to be 

considered in determining intent to deliver), and we refer the parties to those cases. 

 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 

accused, 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 
4 

circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 

S.W.3d 9, 13 (Tex.Crim.App. 2007). With that said, we turn to the record before us. 

 In this case, Appellant's sister and roommate testified that the controlled 

substance in question was found in the bedroom used exclusively by Appellant, in what 

he used as his clothes hamper. She also testified that her search of his bedroom was 

instigated by her concern over his association with persons of questionable character 

and his unusual behavior, including an instance where he received a phone call, left the 

apartment to meet someone in the parking lot, and then shortly returned to the 

apartment. Assuming, as we must, that the jury was allowed to draw reasonable 

inferences from her direct testimony and that it may have resolved any credibility issue 

in favor of that testimony, such evidence, albeit inferential, is sufficient for us to find that 

a rational trier of fact could have found the essential elements of the offense charged 

beyond a reasonable doubt. Issues one, two, five and six are overruled. 

Issues Three and Four - Article 38.141 

 Appellant contends the State's key witness, Appellant's sister, was a "covert 

witness" requiring corroboration pursuant to the provisions of article 38.141 of the Texas 

Code of Criminal Procedure. We disagree. 

 Article 38.141 provides, in pertinent part, as follows: 

A defendant may not be convicted of an offense under Chapter 481, 

Health and Safety Code, on the testimony of a person who is not a 

licensed peace officer or special investigator but who is acting covertly on 

behalf of law enforcement or under color of law enforcement unless the 

testimony is corroborated by other evidence tending to connect the 

defendant with the offense committed. 

(Emphasis added). 
5 

Neither the word "covertly" nor the phrase "acting . . . on behalf of law 

enforcement or under color of law enforcement" are defined in the statute and we have 

not been directed to any case specifically construing either provision. We are, however, 

guided by the general principle that when construing a statute, words are to be given 

their ordinary meaning unless the statute defines them or they are connected and used 

with reference to a particular trade or subject matter or they are used as a term of art. 

Tex. Gov=t Code Ann. ' 312.002 (West 2005). In that regard, to act covertly is to act in 

a concealed, secretive, or disguised manner, and to act on behalf of someone is to act 

as that person's representative or proxy. 

Here, Sonia acted independently. She alone made the decision to investigate 

Appellant's activities and to report her findings to her parents. Together with her 

parents, without the assistance or encouragement of law enforcement, she made the 

decision to report her findings to the police and to explain the circumstances 

surrounding her coming into possession of the paper bag containing 133.9 grams of a 

controlled substance. Simply put, Sonia was not a covert witness because she was not 

acting on behalf of law enforcement. Issues three and four are overruled. 

Conclusion 

Having overruled each of Appellant issues, the trial court’s judgment is affirmed. 

 

Patrick A. Pirtle 

 Justice 

Do not publish.