Riggins v. State

1

ERIC DONTA RIGGINS, Appellant v. THE STATE OF TEXAS, Appellee

No. 01-22-00334-CR

Court of Appeals of Texas, First District

August 31, 2023

On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Case No. 86528-CR

Panel consists of Justices Landau, Countiss, and Guerra.

OPINION

Amparo Guerra Justice

Appellant Eric Donta Riggins was charged by indictment with the first-degree felony offense of illegal barter, expenditure or investment. See Tex. Health & Safety Code § 481.126. A jury found appellant guilty of the lesser-included offense of attempted illegal barter expenditure, or investment, and the trial court assessed his punishment at thirty years' confinement. In four issues, appellant contends that: (1) the evidence is legally insufficient to sustain his conviction (2) he was denied his constitutional right to an impartial judge because the trial court considered inaccurate and extrajudicial information in assessing the sentence, (3) the trial court erred in failing to conduct a hearing on his motion for new trial, and (4) the administrative judge erred in failing to conduct a hearing on his motion to recuse. We affirm.

Background

In January 2019, the Brazoria County Sheriff's Office (BCSO) Narcotics Unit received information from a confidential informant that an individual named Christopher Berry wanted to buy large quantities of cocaine. BCSO undercover investigators decided to conduct a "reverse buy" operation."^[1] The informant called Berry and told him that his "son" would call Berry to set up a meeting. Sergeant Galvan, posing as the informant's son, phoned Berry, who told him, "We're trying to get six of them girls for twenty apiece." Sergeant Galvan testified that Berry wanted to purchase six kilograms of cocaine at $20,000 per kilogram. Berry told Galvan that he would be bringing someone else along who would be supplying most of the funds toward the purchase. The informant set up a meeting with Berry at a Valero gas station on Highway 6 in Manvel, Texas, for January 22, 2019.

When the investigators arrived at the Valero station, the informant was sitting at a table and speaking with two men, later identified as Berry and appellant. The informant and appellant then approached two undercover officers, Sergeant Galvan and Officer Christopoulos, and the informant introduced Sergeant Galvan as his son. Afterwards, the informant returned to the picnic table where Berry was still sitting. Appellant and Sergeant Galvan got into the officer's undercover vehicle, with Officer Christopoulos seated in the front seat.

During the meeting, appellant talked about how he conducts business with other dealers and wanted to develop a secondary source, stating "I already got my people . . . but I want another line because my line can't keep up with what I got." Appellant told the officers that he did not want his supplier in Mexico to find out that he had a new supplier because they might not supply him anymore. Appellant stated that he dealt with cocaine and that Berry was involved with grass.

Sergeant Galvan testified that appellant told the officers that he wanted to purchase five kilos of cocaine and that he had $100,000 with him to buy it. Appellant stated, "I brought my money out here. . . . He told me they were going for twenty. . . . He told me like he was ready, that's why I brought my bread." Appellant stated multiple times that he had the money with him.

The officers showed a "surprise flash," or sample kilo, to appellant to inspect. After he cut the package open with a knife, appellant told the officers, "That ain't going to fly right there . . . it's recompressed . . . it can't be looking like that." Appellant told the officers he wanted to test it, stating, "Regardless if it cook right, it's about the taste." The officers told appellant they had a ranch where appellant could pick the five kilos he wanted out of the ten or twenty available and cook up the cocaine there or at his place. Appellant told the officers, "Let me see the other ones if you got some more" and "I've got the money right now." Appellant agreed to go to the ranch, telling the officers "I'll follow you then."

At that point, Officer Galvan gave the signal to the surveillance team to perform a bust. Appellant, with Berry in the passenger seat, followed the officers in his vehicle on Highway 6 toward Alvin. A patrol officer then activated his lights and initiated a stop of appellant's vehicle. Officers Galvan and Christopoulos continued driving.

Officer L. Harlan, a narcotics investigator with Brazoria County and the Drug Enforcement Administration, testified that law enforcement recovered $93,035 from appellant's car: $80,000 in a Louis Vuitton backpack and $13,000 was discovered on appellant. A glass beaker was discovered inside the backpack, and officers found a hot plate, digital scale, and a whisk inside appellant's truck. Officer Harlan testified that these are tools used to cook cocaine. The results of a presumptive field test performed following appellant's stop showed cocaine residue on the items. A loaded .45 caliber handgun was discovered in the front driver's side door pocket.

An audio recording of the phone call between the confidential informant and Berry was admitted into evidence at trial. An audio recording of the discussion between appellant and the officers in the undercover vehicle was admitted into evidence as State's Exhibit 4.

After both sides rested, the trial court granted the State's request to include an instruction on the lesser-included offense of attempted barter, expenditure, and investment in the jury charge. The jury found appellant guilty of the lesser-included attempted offense. Following appellant's plea of "true" to an enhancement allegation at the punishment hearing, the trial court sentenced appellant to thirty years' confinement in the Texas Department of Criminal Justice-Institutional Division.

Appellant filed a motion for new trial and a motion to recuse Judge Gilbert. Judge Gilbert declined to recuse himself and referred the case to the presiding judge of the Eleventh Administrative Judicial Region. The referral court issued an order denying appellant's motion to recuse. The trial court subsequently denied appellant's motion for new trial without a hearing. This appeal followed.

Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is legally insufficient to support his conviction for attempted illegal investment.

A. Standard of Review and Applicable Law

Every criminal conviction must be supported by legally sufficient evidence as to each element of the offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In a legal sufficiency review, we consider all the evidence in the light most favorable to the verdict and decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010).

The evidence may be circumstantial or direct, and juries may draw multiple reasonable inferences from the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). The jury is the sole judge of witness credibility and of the weight given to any evidence presented. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). A jury may believe or disbelieve some or all of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We presume that the jury resolved any conflicting inferences in favor of the verdict, and we defer to that determination. Merritt, 368 S.W.3d at 525-26.

A person commits the offense of illegal barter, expenditure, or investment if he barters property or finances or invests funds he knows or believes are intended to further the commission of an offense for which the punishment is imprisonment in the Texas Department of Criminal Justice for life. See Tex. Health & Safety Code § 481.126(a)(3). Here, the State alleged the funds were "intended to further the commission of the offense of possession of a controlled substance, to wit: cocaine, an offense under Chapter 481 of the Health and Safety Code, punishable by imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life."

A person commits an "attempt" offense if, with the specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended. Tex. Penal Code § 15.01(a). The defendant need not have accomplished every act short of actual commission to be guilty of an attempted offense. Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981).

On appeal, appellant disputes both the specific intent to finance or invest in cocaine and an act beyond mere preparation. We address each of these elements in turn.

B. Evidence of Intent

"The element 'with specific intent to commit an offense' has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result." Nava v. State, 415 S.W.3d 289, 299 n.22 (Tex. Crim App. 2013) (quoting Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1982) (op. on reh'g)). Direct evidence of the requisite culpable mental state-the mens rea of the offense-is not required. Herrera v. State, 526 S.W.3d 800, 809 (Tex. App.- Houston [1st Dist.] 2017, pet. ref'd) (citing Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)). Intent may be inferred from circumstantial evidence. Tottenham v. State, 285 S.W.3d 19,...