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Click here for the full text of this decision FACTS:An informant paid by the Drug Enforcement Agency and the Harris County Sheriff’s Office (HCSO) met “Ballo” at a cantina. Ballo agreed to sell the informant two kilograms of cocaine for $16,000 each. Ballo and the informant met at a flea market, where Ballo arrived with two companions in a black truck. One of Ballo’s companions spoke to the informant for about five minutes, before leaving in the truck. The informant, in his own car, followed the truck to a service station on Highway 90. While at the service station, the undercover surveillance officer observed the same man who had earlier spoken with the informant get out of the black truck and into the informant’s car. The informant, now accompanied by Ballo, drove his car from the service station to a Conoco station, where he met with occupants of a parked white Buick. This was the first time the informant met Rodolfo Serna Pena. Pena was seated in the back seat of the Buick with Jamie Ibarra in the driver’s seat and Frank Olivarez in the front passenger seat. According to the informant, the informant stood on one side of the Buick while Ballo stood on the other side. The informant stated that Ballo told the occupants in the Buick that the informant would buy the material. The informant said that Ibarra asked for the money. When the informant asked to see the merchandise, Pena pulled a package in a little black bag “from underneath where he was.” Pena gave the package to Olivarez, telling him to “show it to [the informant].” Olivarez took the package from Pena and showed it to the informant, who touched the package to check for firmness. When the informant asked about the second kilogram, Pena responded by signaling to the place where Pena had gotten the first package, stating, “we have the other one here.” Pena then asked the informant about the money. The informant responded that the money was “nearby,” requesting that they follow him to get it. Angry that the informant did not have the money, the occupants of the Buick left without culminating the transaction. The informant left the scene in his own car, where he called the undercover surveillance officer to inform him that the cocaine was in the Buick. The undercover surveillance officer instructed a marked police car to stop the Buick. After receiving the call, Deputy Willis of the HCSO saw the Buick make a left turn without signaling. Deputy Nations of the HCSO then performed the traffic stop. When Nations approached the vehicle, he observed Pena tugging and pulling on the rear seat where he was sitting. Nations saw the men moving erratically around in the car, which was “swaying back and forth quite a bit.” Deputy Willis saw Pena lift the back seat of the Buick, where he placed something underneath the seat. When the three occupants of the Buick were taken out of the car, the two deputies found a loaded revolver on the front seat next to where Ibarra had been seated and one package of cocaine under where appellant had been seated. A forensic chemist in the controlled-substance laboratory of the Harris County Medical Examiner’s Office later analyzed the substance found under Pena’s seat and determined it to be cocaine weighing 981.6 grams, including adulterants and dilutants. A fingerprint examiner lifted a partial print on the bag that held the substance, but the print had insufficient ridge detail making it inadequate to either exclude or match it to Pena. At trial, the state called Ibarra, who had driven the Buick. Ibarra said that he and Olivarez were together that day snorting cocaine. Ibarra related that he had known Pena for eight years and called Pena to try to get a loan. Pena told Ibarra that he would give Ibarra the loan if Ibarra drove Pena somewhere. Ibarra and Olivarez picked Pena up and drove to the store in Ibarra’s Buick. Ibarra testified that he was not paying attention to whether Pena was carrying anything when he got in the car. According to Ibarra, they drove to the Conoco station after Pena got a call on his cell phone. Ibarra said that a truck was in the Conoco parking lot when they got there. Pena spoke to the driver of the truck about money. Ibarra testified that the Buick and the truck were parked next to each other “driver to driver.” According to Ibarra, no one got out of either vehicle. Ibarra said that Pena showed the driver of the truck a kilogram of cocaine. Pena became upset when the driver of the truck did not have the money. When they left the Conoco station, they drove to Pena’s house where they were stopped by two patrol cars. The charge instructed the jury that the testimony of Ibarra, the accomplice, must be corroborated by “other evidence.” HOLDING:Affirmed. Pena argued that insufficient evidence supported his conviction for possession with intent to deliver cocaine. Under Texas Health & Safety Code �481.112(a) and (f), a person commits the offense of possession with intent to deliver a controlled substance if he knowingly possesses with intent to deliver a controlled substance listed in “Penalty Group one,” which includes cocaine. In a possession-with-intent-to-deliver case, the state must prove that the defendant: 1. exercised care, custody, control or management over the controlled substance; 2. intended to deliver the controlled substance to another; and 3. knew that the substance in his possession was a controlled substance. A defendant, the court stated, may not be convicted of the offense on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense. The court found that evidence from sources other than the informant and the accomplice tended to connect Pena to the cocaine, which was found by police officers in a place easily accessible to Pena, on the same side of the car as Pena and in an area where Pena was seen reaching. Thus, the court held that the evidence was sufficient to meet the corroboration requirements of Texas Code of Criminal Procedure Arts. 38.14 and 38.141. The court expressed no opinion on whether it was proper to use an informant’s testimony to corroborate the accomplice’s testimony and vice versa. OPINION:Alcala, J.; Radack, C.J., and Alcala and Bland, JJ.

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