John Mickeal Barton v. State ( 2003 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00125-CR

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JOHN MICKEAL BARTON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30399-B

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            John Mickeal Barton has filed a motion asking this Court to dismiss his appeal. Pursuant to Tex. R. App. P. 42.2, his motion is granted.

            We dismiss the appeal.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          November 3, 2003

Date Decided:             November 4, 2003

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den

*Roby Hadden, J., Sitting by Assignment

MEMORANDUM OPINION

          Melissa Alcorta Garza appeals from her jury conviction for possession with intent to deliver a controlled substance. The jury assessed her punishment at twenty-five years' imprisonment. On appeal, she contends first that the evidence is legally and factually insufficient to support the verdict, and second that the trial court erred by refusing to submit a lesser-included offense charge to the jury. Garza's contentions are without merit. We affirm.

Evidence Sufficient

          Our review of the record leads us to conclude that the evidence is factually and legally sufficient.

          In reviewing the evidence for legal sufficiency, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude that the contrary evidence is strong enough that the state could not have met its burden of proof, we must find the evidence insufficient. Id.

          The record shows that Garza, with two other women, got off a bus from Laredo in Dallas. Police had received a tip that two or three heavyset Hispanic females in their thirties or forties were carrying a large quantity of narcotics and would be arriving on a bus at a Dallas terminal. The officers saw Garza and two other women fitting that description get off the bus. Detective Jesus Martinez testified Garza went to a picnic table in the parking lot. The officer testified Garza placed a bag on the seat of the picnic table. Martinez identified himself as a police officer and asked if he could speak to her. Garza agreed, and he explained that he was part of a drug interdiction squad. During his questioning, he asked if the bag she was carrying was hers. She stated that it was not and that she had been asked by another lady to carry it to the location. He asked if he could search it, and she stated that it was not her bag. The officer asked her if she had carried it to the location, and she stated that she had, but when he reiterated his request to search the bag, she again told him, "It's not my bag." Concluding Garza had abandoned the bag, Martinez searched it and found that it contained some clothing, a toiletries case with a prescription bottle in Garza's name, and also contained four, one-kilogram bricks of cocaine.

          While she was being booked, Garza told police, "I did all this for $300." Garza testified she carried the bag, she knew it contained drugs, and someone paid her $300.00 to deliver the drugs. She maintained, however, that she thought it was only a small amount of drugs.

          Garza does not deny possessing the drugs. She argues that, because she provided evidence she had no intent to possess such a large quantity of drugs and because intent to possess a specific amount is an element of the offense, the State's failure to prove her knowledge of the amount causes the evidence to be insufficient. We disagree. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003) criminalizes possession with intent to deliver. Under the Code, an offense is committed if the person knowingly "possesses with intent to deliver a controlled substance listed in Penalty Group 1." Id. The amount must be proven in order to determine the level of the offense—a state jail, second, or first degree felony. Under the Penal Code definition, a person acts intentionally if it is his or her conscious desire or objective to engage in the conduct or cause the result. The person acts knowingly when he or she is aware of the nature of his or her conduct or that the circumstances exist.

          Thus, under the plain language of the statute, the testimony of the officer and Garza's own testimony provide evidence that is both factually and legally sufficient to show that Garza knowingly possessed a controlled substance with intent to deliver. Further, the quantity of contraband determines only the range of punishment to be assessed. Tex. Pen. Code Ann. § 6.04(b) (Vernon 2003) provides that a person is criminally responsible for an offense, even if the offense that the person intended to commit was less than or differs from the offense that the person actually committed. Garza acknowledged the unexpected weight of the bag, and the jury was entitled to believe that, because she had been in possession of the bag, she was chargeable with knowledge of its contents.

          The evidence is both factually and legally sufficient to support the verdict.

Lesser-Included Charge Not Required

          Garza next contends the trial court committed reversible error by refusing to submit a lesser-included offense charge to the jury. Again, we disagree.

          A defendant is entitled to a charge on a lesser offense if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence that would permit the jury rationally to find that, if the defendant is guilty, he or she is guilty only of the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000); Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

          We have already discussed the evidence. The only evidence that even intimates that Garza possessed a lesser amount of the cocaine is her own testimony that she thought she was only going to be used to transport a smaller amount. Those tracks of argument are parallel. There is no evidence, which if believed by a jury, would allow it to conclude Garza possessed less than four kilograms of cocaine. Under these facts, whether Garza believed she would be carrying, or thought she was in possession of, a lesser amount is not a relevant consideration in determining the amount of which she was actually in possession. The second requirement that must be met to justify submission of a lesser-included offense charge has not been met. We overrule this contention of error.

          We affirm the judgment of the trial court.

                                                                           Roby Hadden*

                                                                           Justice

*Sitting by Assignment

Date Submitted:      July 15, 2004

Date Decided:         August 31, 2004

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