NO. 07-01-0306-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B AUGUST 13, 2003

______________________________ LEE EDW ARD BOOTEN, AKA LEE EDW ARD TURNER AKA QUICK, APPELLANT V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 155 TH DISTRIC T COURT O F W ALLER CO UNTY; NO. 00-07-10,2 91; HONORABLE MARY BAC ON, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBE LL, JJ. MEMORAND UM OPINION Appellant

Lee Edward Boote n appeals from his convicti on for delive ry of a contr olled substance. He urgesthat the evi dence is factuall y insufficient to support the convicti on . We affirm.2

On April 12, 2000, Off icer Michael Chaney, a reserve officer with the Ci ty of Brook shire Police Depar tment, and Officer Lis a Gartman, met Pam Co llins at a m otel i n Hemp stea d, T exas. Gartm an ha d pur chas ed dr ugs f rom C ollin s ear lier i n the day. Chaney and Gartman, both w

orking under

cover, tol d Collins that they w anted to buy some crack coca ine. Coll ins told Chane y and Gartman that sheknew wher e to buy some crack, and Collins

and Chaney

left the motel togethe r. Collins directed Chaney to driveto appellant’s addr

ess. When they arrived, Chaney gave Co llins $100 and Collins w entup to appellant in the driveway of the residence. Chaney testif ied that he watched from his vehicle while C ollins handed money to appellant and appellant handed something back to Collins. According to Chaney, Collins th en returned to the car, handed t he crack cocaine to him, an d a sked for s ome in exch ange for s etti ng up the b uy. Ch ane y refu sed t o give Collins any of the cocai ne, but Gartman gav e her $20 whe n Chaney and C ollins ret urned to the motel. Col lin s te sti fied that

after Cha ney dro pped her

off at appe lla nt’s

res iden ce, he l eft in the vehicl e. According to Collins , she and appellan t went insi de the garag e and behind a car where she exchang ed money for cocai ne. She then returned to the car in w hich she and Chaney dr

ove to appell ant’s house, g ave the cocai ne to Chaney, asked for some of the drugs, and her req uest was r efused by

Chaney. Sheagreed w ith Chaney’ s testimony thatshe and Chaney

then returned to the motel wh ere Gartman g ave her $20. She was later indicted for thetransaction, pled guil ty to deli very of a controlled substance, and was serving time for her conv iction at the time of appellant’s trial.3

Appellant

was indi cted in Waller

County for

deliver y of a control led substance i n the amountof one gram or more but le ss than four grams. H e was conv icted and sentenced to ten years

incarcerat ion. Appellant

appeals the convicti on via one i ssue whic h urges factual insufficienc y of the evidence. He urgesthat the evidence is uncontroverted that Col lins was not searched before or after

the alleged transaction with appellant and the State failed to introd uce corroborati ng evidence connecting appellant to an offense i ndependent of the testimony of Colli ns, who w as an accomplice witness . He conclude s first that abs ent independent corroborati ng evidence, h e cannot be conv icted on the tes timony of Collins; a nd second, thatthe State has not overcome his al tern ative reasonable hy pothesis pres ented by the proof that Collins w

as not searched before the alleg ed transaction and might hav e been in possessio n of the cocaine before s he met appellant. The State’s res ponse is tw ofold. First, the State asserts that Chaney’s testimony as to how the transaction occurred is independ ent evidence corrob orating Collins’ test imon y. Second, the State cites Geesa v. State , 820 S.W.2d 154 (Tex.Cri m.App. 1991) as overrul ing the “al ternative reasonable hy pothesis” anal ytical constr uct for testing sufficiency of the e vidence. Review of the evidence in a crimina l case for factual sufficiency to support a convicti on entails a neutral rev iew of all the ev idence, both for and against the find ing. The evidence is fac

tuall y ins ufficie nt if su ch a re view demo nstrat es that (1) t he proof of guilt, standing alone, is too weak tosupport a finding of guilt, or (2) the proo f of guilt, althou gh4

adequate if taken alone, is greatly outweig hed by contr

ary proof. See Johnson v. State , 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When the verdict is in favor of the pa rty w ith the burden of proof, as in this matte r, the v erdict and ju dgment may onl y be set asi de for factual insufficiency

if the entire reco rd shows that evidenc e supporting the jury ’s finding is so weak as

to be clearl y wr

ong and manifestly

unjust. Id

. It is w ithin the prov ince of the jury to consider the demeanor and c red ibility of the witnes ses in w eighing conflicting test imon y. See Cain v. S tate , 958 S.W .2d 404, 408-09 (Te x.Crim.App. 1997). Unless the record clearly reveals that a different result is appropri ate, an appellate court must defer to the fact-finder’s

determination concerning what weight to g ive contr adictory testimonial evidence because resol ution often turns on an ev aluation of credibility and demeano r, which is primarily

a determination to be made by obs ervation of the witnes ses giv ing the testimony. See Johnson , 23 S.W.3d at 8. The State and appellant agree, and the jury was charged, that Co llins was an accomplice witness

. See T EX . C RIM . P ROC . C ODE A NN . art. 38.14 (Vernon 1981). As such, her testimony is not sufficient e vidence for conviction unless it is co rroborat ed. If, after eliminating the accomplice witness’ testim ony, the remaining evidence tends to conn ect the accused w ith commission of the offense, then the evidence i s sufficient corr oboration. See McDuff v. State , 943 S.W .2d 517, 521 (Tex.App. –Austin 1997, pet.ref ’d). The State points to Officer Chaney’s testimony ascorroborati on evidence. Chaney testified that he watc hed from an automobile as Collins a nd a ppel lant conducted a transaction in whic h Collins handed money to appel lantand appellant handed something5

to Collins . Collins

then returned to the car where Chaney was waiting and handed crack coca ine t o Cha ney. Chane y’s testi mony differed from that of C ollins as to whether he drove off after dropping Collins o ff at appellant’s hous e, o r whether he stayed and w atched the transaction. The conflict was for the j ury to re solve, however. We respect th e jurors’ decision. See Cain , 958 S.W.2d at 408-09. Chaney’s testimony was evidence tending to connect appellant w ith the transac tion. Itwas sufficien t to corrobor ate Collins ’ accomplice witn ess testimony

. See McD uff , 943 S.W.2d at 521-23. And, a decision i s not m anif estl y unjust merely because the jury resolved conflicting views of the evidence in favor of the State. See Cain , 958 S.W.2d at 410. As to appellant’s assert ion that the State’s evidence di d not overcome the alte rnat ive reasonab le hypothesi s presented by the evidenc e, we note tha t the Court of Criminal Appeals rejec

ted the reasonable alternative hy pothesis const ruct as a measure of legal suffici ency in ci rcumstantial evidence cases. See Geesa , 820 S.W.2d at 161. The Court has not rejected the construct in factual sufficiency analyses. See Wilson v. State , 7 S.W.3d 13 6, 141 (Tex.Cr im.App. 1999). Bu t, the construc t is not deter minative of the factual sufficiency i ssue. It is only a factor to be cons idered. Id

. Wh en we consider such factor, we defer to the jury’s choice between competi ng theories w hich are suppor ted by ev ide nce. See Goodman v. State , 66 S.W.3d 283, 287 (Tex.Cri m.App. 2001). The existence of a reasonable alterna tive hypothesis does not render the evidence f actually6

ins u fficient. See Richardson v . State , 973 S.W.2d 384, 387 (Tex.App.-- Dallas 1998, n o pet.). The jury r

esolved the issues of credi bility in favor of the State’s position , and against appellant’s construct ur ging that Collins brought the crack cocaine wi th her to the meeti ng with appellant . S u c h r e s o l u t i o n d o e s n o t r e n d e r t h e e v i d e n c e fa c t u a l l y i n s u ffi c i e n t

. We conclude that the proof of gui lt, standing alone, is not too weak to support a findi ng of guilt, nor that the pro of of guilt is g reatly out weighed by contrar

y proof. The evidence i s factually sufficient to suppor t the verdi ct. See Johnson , 23 S.W.3d at 11. Appellant ’s sole is sue is ove rruled. The j udgment is affirmed.

Phil Johnson Chief Justice Do not publish

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