Demetrius Rashad Greer v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00056-CR
DEMETRIUS RASHAD GREER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2008-2073-C1
MEMORANDUM OPINION
Demetrius Rashad Greer was convicted by a jury of the offense of Possession of a
Controlled Substance with Intent to Deliver – Penalty Group I. TEX. HEALTH & SAFETY
CODE ANN. § 481.112 (Vernon 2003). Based on the jury’s verdict in the punishment
phase, the trial court sentenced Greer to imprisonment for twenty-two (22) years in the
Texas Department of Criminal Justice – Institutional Division. Because we find that the
evidence is legally and factually sufficient to sustain Greer’s conviction, we affirm the
judgment.
Legal and Factual Sufficiency
Greer contends that the evidence was both legally and factually insufficient to
support the verdict of the jury. In reviewing the legal sufficiency of the evidence, this
Court looks at all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S.
Ct. 2781 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008).
Under a legal sufficiency review, we consider all of the evidence admitted, both
properly and improperly admitted, as well as direct and circumstantial evidence.
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury, as sole judge of the
witnesses' credibility and the weight to be given their testimony, is free to accept or
reject any or all of the evidence presented by either side. See Margraves v. State, 34
S.W.3d 912, 919 (Tex. Crim. App. 2000). As we must, we give deference to "the
responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. at
318-19). Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor and can alone be sufficient to establish guilt. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004).
In a factual-sufficiency review, there is only one question to be answered:
“Considering all of the evidence in a neutral light, was a jury rationally justified in
finding guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex.
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Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence
can be factually insufficient in one of two ways: (1) when the evidence supporting the
verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2)
when the supporting evidence is outweighed by the great weight and preponderance of
the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.
Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Watson, 204 S.W.3d
404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
2000); see also Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007). "[A]n
appellate court must first be able to say, with some objective basis in the record, that the
great weight and preponderance of the . . . evidence contradicts the jury's verdict before
it is justified in exercising its appellate fact jurisdiction to order a new trial." Watson, 204
S.W.3d at 417. A reversal for factual insufficiency cannot occur when "the greater
weight and preponderance of the evidence actually favors conviction." Roberts, 220
S.W.3d at 524.
Although we have the ability to second-guess the jury to a limited degree, our
factual-sufficiency review should still be deferential, with a high level of skepticism
about the jury's verdict required before we can reverse a conviction. Grotti v. State, 273
S.W.3d 273, 283 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 417. We cannot conclude
that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the
quantum of evidence admitted, we would have voted to acquit had we been on the jury.
Watson, 204 S.W.3d at 714. Nor can we declare that a conflict in the evidence justifies a
new trial simply because we disagree with the jury's resolution of that conflict. Id. The
Greer v. State Page 3
verdict may be set aside only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Grotti, 273 S.W.3d at 280.
Four officers experienced in the investigation of drug crimes were patrolling an
area of Waco known for drug crimes. At approximately midnight, these officers
spotted Greer wave at a car, walk up to it, and talk into the window. A woman on a
bicycle also approached the vehicle. They spotted the police and immediately
dispersed. Greer walked toward the officers, swinging one arm in an exaggerated
motion and keeping his other arm still, holding onto a pair of pants. No officer saw
Greer drop anything during his approach, however, a baggie containing 45 rocks of
crack cocaine, weighing 13.60 grams, was located in the grass near where Greer was
walking very shortly thereafter. The approximate value of the crack cocaine was $1,400
and the amount of the cocaine was not generally an amount a user would have but an
amount a seller would have in their possession. Users generally have one-half to one
rock of crack cocaine at a time. The officers did not believe that the baggie was on the
ground prior to Greer’s approach. The bag was dry, which was indicative that the
baggie had not been there long. When requested to identify himself, Greer was
deliberately dishonest about the spelling of his name because he knew he had a warrant
pursuant to a bond forfeiture for possession of a controlled substance with intent to
deliver cocaine.
The woman on the bicycle was a known crack cocaine addict and had been using
cocaine on the day in question. During her testimony she admitted that she had been
Greer v. State Page 4
convicted for possession of drugs, a felony. She stated that she had exchanged the
pants for crack with Greer about an hour earlier.
Greer testified that he was enroute to his grandmother’s house nearby and that
the $166.00 he had in his possession was birthday money. The money was mostly in
five and ten dollar bills. He had purchased the pants earlier that evening from a friend
but couldn’t identify him other than his first name. Greer denied possessing any crack
cocaine and stated that he approached the vehicle to tell the girls inside that they
needed to get home because they were too young to be out that late. Greer admitted to
giving the officers a false name because he lies to get out of trouble. He did not have
any baggies, drug paraphernalia, or a weapon in his possession when he was arrested,
however, according to law enforcement, the lack of baggies or drug paraphernalia was
not out of the ordinary, as crack cocaine rocks are easily distributed with no packaging.
Reviewing the evidence using the appropriate standards, giving due deference to
the jury’s determinations regarding the credibility of the witnesses, we find that the
evidence was both legally and factually sufficient to support the judgment of
conviction. The jury could have believed the officers’ testimony and disbelieved Greer’s
testimony. We cannot say that the verdict is such that any rational trier of fact could not
have found the essential elements of the offense beyond a reasonable doubt or that the
verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. We overrule Greer’s sole issue.
Greer v. State Page 5
Conclusion
We find that the evidence is legally and factually sufficient to support the jury’s
verdict. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 25, 2009
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