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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00067-CR
Larry Westbrook, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 19,555, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING
A jury found appellant guilty of the offense of delivery of a controlled substance and assessed punishment at imprisonment for fifteen years. See Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.112(a) (West Supp. 1999). Appellant brings one point of error, contending the evidence was factually insufficient to support his conviction. We will affirm.
Background
John Moseley, a member of the Killeen Police Department and Central Texas Narcotics Task Force, Ted Rechloff, of the Milam County Sheriff's Department, and Jack McDaniel, a captain at the Bartlett Jail, were working together in an undercover drug-buying operation. They went to a known drug-trafficking location in the town of Cameron in search of "street-level" dealers. McDaniel drove a car equipped with a videocassette recorder while Moseley and Rechloff monitored events from a second vehicle.
McDaniel testified that he went to the location and paid twenty dollars to appellant for a "rock" of what was later identified as crack cocaine. Appellant handed the rock from his hand through the open driver's side window to McDaniel's hand. McDaniel then left the scene and transferred the rock to Rechloff who transported the rock to the Department of Public Safety for analysis. McDaniel identified appellant as the person who sold him the rock.
Chris Youngkin, a DPS chemist, described the receipt of the substance from Rechloff and its return to him. He described the testing procedures for controlled substances. The substance tested positive for cocaine.
Factual Sufficiency of the Evidence
When the court of appeals conducts a factual-sufficiency review, the court views all the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. The court does not view the evidence in the light most favorable to the prosecution as it does in legal-sufficiency review. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed).
In his brief, appellant contends that McDaniel's testimony proved that the substance purchased from appellant could have been contaminated by cocaine from previous unrelated drug purchases because McDaniel stated that he put the rock in the cupholder in the console of his car and said that "he had put other drugs in the same console." After stating that he had kept the rock in his possession until turning it over to Rechloff, McDaniel said he had either kept the rock in his hand or placed it in a cup holder in the console, where he usually kept such items. He said if he made more than one purchase, however, he kept those purchases separated. The exchange on which appellant depends was:
Q: Okay, but -- so, there weren't two drug purchases put together in that holder is what you're saying?
A: Right.
Q: Have you put other drugs in that holder before?
A: Yes, sir.
This testimony came in the context of McDaniel's tracing the chain of custody of the rock and describing his standard operating procedure for controlling his undercover purchases. Although the jury might have drawn an inference that the cocaine found in the rock in question was contamination resulting from other purchases, it was not compelled to do so. The jury could have concluded from McDaniel's testimony about separating purchases that he took all necessary precautions to prevent contamination between different purchases.
Appellant also contends that the evidence is factually insufficient to support his conviction because the DPS chemist testified only to the total weight of the rock and to the positive result of the test for cocaine, but did not testify to the exact weight of cocaine that was in the rock. Appellant was indicted for the delivery of a controlled substance, cocaine, of less than one gram by aggregate weight, including adulterants and dilutants. The State was not required to quantify the cocaine, adulterants, and dilutants when the weight of the adulterants and dilutants was not used to increase punishment. See Murray v. State, 864 S.W.2d 111, 117-18 (Tex.App.--Texarkana 1993, pet. ref'd). (1)
Contrary to appellant's argument, the jury was not compelled to conclude that the method of transporting the rock and the small amount of cocaine involved meant that appellant had not delivered a controlled substance. The verdict was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Conclusion
We overrule appellant's only point of error and hold that factually sufficient evidence supports the jury finding that appellant delivered a controlled substance. We affirm the judgment of conviction and sentence.
Bea Ann Smith, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: February 4, 1999
Do Not Publish
1. Further, under the current definitions, which were in effect at the time of the offense, anything not cocaine was an adulterant or dilutant. See Tex. Health & Safety Code Ann. § 481.002(49) (West Supp. 1999); Williams v. State, 936 S.W.2d 399, 405 (Tex. App.--Fort Worth 1996, pet. ref'd).
2">
When the court of appeals conducts a factual-sufficiency review, the court views all the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. The court does not view the evidence in the light most favorable to the prosecution as it does in legal-sufficiency review. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed).
In his brief, appellant contends that McDaniel's testimony proved that the substance purchased from appellant could have been contaminated by cocaine from previous unrelated drug purchases because McDaniel stated that he put the rock in the cupholder in the console of his car and said that "he had put other drugs in the same console." After stating that he had kept the rock in his possession until turning it over to Rechloff, McDaniel said he had either kept the rock in his hand or placed it in a cup holder in the console, where he usually kept such items. He said if he made more than one purchase, however, he kept those purchases separated. The exchange on which appellant depends was:
Q: Okay, but -- so, there weren't two drug purchases put together in that holder is what you're saying?
A: Right.
Q: Have you put other drugs in that holder before?
A: Yes, sir.
This testimony came in the context of McDaniel's trac
Document Info
Docket Number: 03-98-00067-CR
Filed Date: 2/4/1999
Precedential Status: Precedential
Modified Date: 9/5/2015