Ecrandal Walker v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Ecrandal Walker

Appellant

Vs.                   Nos. 11-03-00149-CR & 11-03-00150-CR -- Appeals from Dallas County

State of Texas

Appellee

The jury convicted Ecrandal Walker of the first degree felony offense of unlawful possession with intent to deliver cocaine.^[1]  The trial court assessed punishment at 25 years confinement and sentenced appellant accordingly.  During the punishment phase of the trial, the trial court also considered a motion to revoke appellant=s community supervision for a prior state jail felony conviction for burglary of a building.^[2]  The trial court revoked appellant=s community supervision, sentenced appellant to 2 years confinement, and assessed a $1,500 fine.  Appellant appeals the revocation in Cause No. 11-03-00150-CR.  Appellant appeals the conviction for unlawful possession with intent to deliver cocaine in Cause No. 11-03-00149-CR.  We affirm the judgment in both causes. 

                                                                  Issues Presented

Appellant presents one point of error in Cause No. 11-03-00149-CR and presents two points of error in Cause No. 11-03-00150-CR.  In his first point in Cause No. 11-03-00150-CR, he argues that the trial court erred in admitting portions of the expert testimony of Dallas Police Department Detective Anthony Gipson.  In his sole point in Cause No. 11-03-00149-CR and his second point in Cause No. 11-03-00150-CR, appellant complains that the trial court erred in permitting the prosecutor to ask improper questions during the punishment phase of the trial about an alleged murder conviction. 

                                                        Detective Gipson=s Testimony

Before Detective Gipson testified, the State presented evidence that appellant possessed 70.6 grams of cocaine, including adulterants and dilutants.  The State offered Detective Gipson=s expert testimony on the issue of appellant=s intent to deliver the cocaine.  Detective Gipson testified based on his training and experience as a narcotics officer.  He said that he had been a detective with the narcotics division of the Dallas Police Department for almost 15 years.  He said that the narcotics division investigated drug trafficking in and around Dallas County.  He said that he worked with confidential informants, made undercover drug buys, conducted surveillance of suspected drug traffickers and drug trafficking locations, and obtained and executed narcotics search warrants.

Detective Gipson testified that, in his opinion, individuals do not possess 70.6 grams of cocaine for their own personal use; rather, individuals possessing that much cocaine intend to sell the cocaine.  He said that an individual use of either crack cocaine or powder cocaine is about one- tenth of a gram and sells for $10.  He said that there are more than 700 individual uses of cocaine in 70.6 grams of cocaine and that the street value of such an amount is over $7,000. Detective Gipson also testified that the cocaine in question was meant to be resold either in bulk or in much smaller quantities.

                                            Admissibility of Detective Gipson=s Testimony

In a possession-with-intent-to-deliver case, the State may prove the Aintent to deliver@ element by circumstantial evidence, such as the quantity of the drugs possessed, the manner of packaging, and the presence of the accused in a drug house.  Taylor v. State, 106 S.W.3d 827, 831 (Tex.App. - Dallas 2003, no pet=n); Smith v. State, 737 S.W.2d 933, 941 (Tex.App. - Dallas 1987, pet=n ref=d).  The intent to deliver is a question of fact for the jury to resolve; and it may be inferred from the acts, words, or conduct of the accused.  Taylor v. State, supra.

Appellant argues that the trial court erred in admitting Detective Gipson=s testimony (1) that appellant had too much cocaine for personal use and (2) that the cocaine would either be sold in a drug house or on the street for varying amounts of profit.  We review a trial court=s decision on whether to admit or exclude evidence under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex.Cr.App.2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1200 (1997).  To be admissible, expert testimony must assist the trier of fact. TEX.R.EVID. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex.Cr.App.1990).  The expert testimony must reflect information that is outside the general knowledge of lay persons.  Schutz v. State, 957 S.W.2d 52, 70 (Tex.Cr.App. 1997).  Expert testimony assists the trier of fact when the jury is not qualified to Athe best possible degree@ to determine intelligently the particular issue without the help of the testimony; however, the expert testimony must aid, not supplant, the jury=s decision.  Schutz v. State, supra at 59; Duckett v. State, supra at 914.

Taylor v. State, supra, also involved expert testimony by Detective Gipson.  In Taylor, Detective Gipson testified as an expert witness based on his training and experience as a narcotics officer with the manufacture, packaging, possession, and sale of crack cocaine. He provided expert opinion testimony on the issue of the intent to deliver cocaine.  The court held that AGipson=s testimony was properly admitted to assist the jury in determining the issue of intent because of his superior knowledge of the circumstances and nuances of illegal narcotics packing and sales.@  Taylor v. State, supra at 833.

Detective Gipson=s testimony in this case is similar to his testimony in Taylor.  He based his testimony in this case on his training and experience as a narcotics officer. We find that his testimony was properly admitted to assist the jury in determining the issue of appellant=s intent to deliver the cocaine.  Taylor v. State, supra.

Appellant=s first point in Cause No. 11-03-00150-CR is overruled.

                                         Prosecutor=s Questions During Punishment Phase

Appellant contends that the trial court erred in permitting the prosecutor to ask improper questions during the punishment phase of the trial about an alleged murder conviction in California.  Appellant asserts that the questions were improper because the State failed to introduce any evidence, such as penitentiary packets, to prove the murder conviction.  Thus, appellant contends that the trial court permitted the State to inject evidence of an unproven murder conviction.

Appellant did not object to the prosecutor=s questions at trial.  To preserve error for review, the complaining party must make a specific objection and obtain a ruling on that objection.  Wilson v. State, 71 S.W.3d 346, 349 (Tex.Cr.App.2002).  By failing to object, appellant waived his complaint about the prosecutor=s questions.  Appellant=s sole point in Cause No. 11-03-00149-CR and second point in Cause No. 11-03-00150-CR are overruled.

                                                                This Court=s Ruling

The judgments of the trial court are affirmed.    

PER CURIAM

November 18, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

---

^[1]Cause No. 11-03-00150-CR.

^[2]Cause No. 11-03-00149-CR.