in the Matter Of: D.W.A. ( 2003 )

Opinion issued July 10, 2003

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00745-CV

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IN THE MATTER OF D.W.A

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On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2002-00940J

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MEMORANDUM OPINION

          Appellant, D.W.A., was charged with engaging in delinquent conduct by committing the felony offense of delivery of a controlled substance. A jury found that appellant had engaged in delinquent conduct and the trial court adjudicated appellant delinquent and placed him in the custody of the Texas Youth Commission. On appeal, appellant contends that (1) the evidence was legally and factually insufficient to support the jury’s finding because the evidence did not sufficiently establish that he was a party to the delivery of a controlled substance, (2) the trial court erred when it overruled appellant’s objection to the jury charge and denied appellant’s request for an instruction on the lesser-included offense of possession of a controlled substance, (3) the trial court erred when it denied appellant’s motion for expenses to obtain clothing for his adult co-defendant witnesses, and (4) the trial court erred when it admitted typewritten notes of a trial witness’s previous statements. We affirm.

Background

          On January 24, 2002, Officer Brian Bufkin of the Houston Police Department participated in an undercover investigation in which he attempted to purchase cocaine. At trial, Officer Bufkin testified that, during his investigation, he first approached Scott Powell, whom he saw standing on a street corner, and asked where he could purchase “two 20’s,” slang for $40 worth of cocaine.

          Powell got into Bufkin’s pickup truck and directed Bufkin to several locations where he believed they could purchase cocaine. These attempts were unsuccessful. Eventually, Powell and Bufkin met up with Paula Gotch, and Gotch got into Bufkin’s truck to help them search for cocaine. Gotch directed Bufkin to another location to attempt to purchase cocaine, but this attempt was also unsuccessful. Bufkin, Powell, and Gotch then returned to their starting point. Gotch asked Bufkin to pull the truck over to the side of the road and she got out of the truck. Bufkin then saw Gotch meet appellant in the road a short distance from the truck. Bufkin had previously given Gotch two “marked” $20 bills to purchase cocaine. Bufkin saw Gotch exchange the money for something in appellant’s right hand. Bufkin could not see what appellant handed Gotch.

          While Gotch was conducting this transaction with appellant, Powell was still seated in the truck. Powell began arguing with a bystander outside the truck. At trial, Bufkin contended that he was not distracted by the argument and that he instead watched the entire transaction between the appellant and Gotch. Gotch returned to the truck and gave Bufkin the cocaine that she had obtained. After taking some of the cocaine for payment, Gotch walked away from Bufkin’s truck. After a brief conversation, Powell also took a piece of the cocaine and got out of Bufkin’s truck.

          Bufkin then radioed other police officers waiting nearby, giving them descriptions of Powell, Gotch, and appellant. Shortly after the transaction with Gotch was concluded, Bufkin saw appellant and another man leave a convenience store in a nearby strip center. Bufkin again radioed a description of appellant to nearby police officers.

          One of the officers who was nearby during Bufkin’s interaction with Powell and Gotch testified that he also saw two men, one fitting appellant’s description, walking away from the store in the strip center. When a marked police car came around the corner, appellant ran away. Another officer, Officer Hudkins, testified that he saw a man matching appellant’s description running away from the store and looking back over his shoulder as if he was being chased. Officer Hudkins then arrested appellant. Appellant did not have any contraband on him at the time of his arrest, but a search of his pockets revealed $31.10.

          Gotch testified, as a witness for the defense, that, after she had taken Officer Bufkin and Powell to buy cocaine, she told them to let her out of the truck near the strip center. Gotch testified that, as she was walking away, Powell called to her from the truck and asked her to wait because she still had the money in her pocket. According to Gotch, Powell then approached some men, one of whom was appellant, who were standing near the truck. Gotch stated that Powell asked for the money she still had in her pocket. Gotch testified that Powell, after he spoke with appellant, handed her cocaine that she in turn gave to Bufkin. Gotch stated that she could not see whether Powell gave appellant money or whether appellant gave Powell the cocaine. Gotch also stated that Powell did not argue with a bystander. Gotch stated that she knew appellant well and lived in the same neighborhood as he and his mother. Gotch testified that she had been appellant’s babysitter when he was younger.

          During Gotch’s testimony, the State introduced the typewritten notes of interviews an unidentified investigator had with Gotch while she was incarcerated. These notes contained a version of events very similar to the one Gotch gave in her testimony. Gotch testified that she had been given these notes before her testimony, apparently in order to refresh her memory of what she had told the unnamed investigator. In addition to the version of the events Gotch gave in her testimony, the notes also contained several conclusions by the investigator. Among the conclusions was the possibility that Powell, not appellant, was the source of the cocaine and the notation that “Gotch believes it very possible that Powell already had the cocaine before he approached [appellant].” Despite the similarity of the statements in the investigator’s notes to those she made during her testimony, Gotch contended that the statements contained in the notes were not true and that she did not use the notes in giving her trial testimony. Appellant objected to the admission of the investigator’s notes on the grounds that, since Gotch did not use the notes in preparing her testimony, the notes were irrelevant. The trial court overruled appellant’s objection and admitted the investigator’s notes into evidence.

          Powell also testified at trial. Powell testified that, after Officer Bufkin pulled the truck over, Gotch went into a nearby washateria and purchased cocaine from a girl working in the washateria. Powell stated that he could see the entire transaction from the truck. Powell testified that Gotch did not turn over all of the drugs she purchased to Bufkin. Powell admitted that he also took a piece of the cocaine from Bufkin. Like Gotch, Powell denied seeing the appellant that day.

          Appellant’s mother and stepfather also testified at trial. Appellant’s mother stated that it would be unusual for appellant to have more than $10 or $15 spending money at one time, while appellant’s stepfather stated that he had given appellant only $15 that day.

          At the close of evidence, appellant requested a jury instruction on the lesser-included offense of possession. The trial court denied appellant’s request. Legal and Factual Sufficiency

          At the outset, appellant claims that the evidence was legally and factually insufficient because the evidence did not sufficiently establish that he was a party to the delivery of the cocaine to Officer Bufkin. In juvenile cases, a reviewing court applies the criminal sufficiency standards of review. In re L.R., 84 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

          When evaluating the legal sufficiency of the evidence, we view the 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Our review of the factual sufficiency of the evidence requires us to ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563. In conducting our analysis, we may disagree with the jury’s determination, even if probative evidence supports the verdict, but we must also avoid substituting our judgment for that of the fact finder. Id. The jury is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The standard of review for circumstantial evidence is the same as it is for reviewing direct evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

          Appellant was charged with engaging in delinquent conduct by delivering a controlled substance to Officer Bufkin. The elements of the offense of delivery of a controlled substance are: (1) a person, (2) knowingly or intentionally, (3) delivers, (4) a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 2003). Delivery may be effectuated by an actual transfer, a constructive transfer, or an offer to sell. Id. § 481.002(8) (Vernon Supp. 2003). The jury was instructed on the law of parties, which states that a person is criminally responsible for an offense committed by another if he acts with the intent to promote or assist the commission of the offense and he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon Supp. 2003).

          Appellant contends that the evidence was legally and factually insufficient because the State failed to show that he ever had possession of either the marked bills or the cocaine. Appellant points to the State’s failure to test his hands and clothes for cocaine residue, the conflicting testimony of Officer Bufkin, Gotch and Powell, and the distance from which Bufkin observed Gotch and appellant interact. The jury heard both Bufkin and Gotch testify that appellant was the source of the cocaine, although neither actually witnessed appellant hand over the cocaine. Circumstantial evidence, by itself, may be enough to support the jury’s verdict. See Smith v. State, 965 S.W.2d 509, 515 (Tex. Crim. App. 1998). Bufkin stated that, until Gotch spoke with appellant, she did not appear to have any cocaine in her possession. Likewise, Gotch stated that Powell did not indicate that he had any cocaine until after he spoke with appellant. Bufkin saw Gotch give the money he knew to be in her right hand to appellant and receive something from him in return. Similarly, Gotch stated that she gave the money to Powell and he appeared to give it to appellant. Finally, appellant was found with more than $30 in his pockets after he left the strip center and was arrested, and his stepfather testified that he had given appellant only $15.00 that day.

          It is the jury’s responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). “What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor.” Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). After viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d at 562. After a neutral review of all the evidence, both for and against the finding, we do not find that the proof of appellant’s guilt is so obviously weak as to undermine confidence in the jury’s determination, nor is it greatly outweighed by contrary proof. Id. at 563. Accordingly, we hold that the evidence was legally and factually sufficient to support the jury’s finding that appellant engaged in delinquent conduct by delivering a controlled substance. We overrule appellant’s first and second points of error.   

Lesser-Included Offense Instruction

          Appellant next contends that the trial court erred when it denied appellant’s request for a jury instruction that included the lesser-included offense of possession of a controlled substance. The jury charge was reviewed by the court and both sides after the State rested but before appellant presented his evidence. Appellant objected to the charge because it did not contain the lesser-included offense of possession of a controlled substance. The trial court, at the close of appellant’s evidence, overruled appellant’s objection.

          A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id. In other words, the evidence must establish the lesser-included offense as “a valid, rational alternative to the charged offense.” Id. Here, there is no evidence that appellant possessed the cocaine that can be separated from the evidence that he delivered it to either Gotch or Powell, who in turn delivered to Bufkin. Thus, there is no evidence in the record that would permit a jury to have found that, if appellant was guilty of anything, that he was guilty only of possession. We overrule appellant’s third point of error.

Co-Defendant Witness’s Clothing

          Next, appellant argues that the trial court erred when it denied appellant’s motion for expenses to obtain clothing for his adult co-defendant witnesses, Gotch and Powell. After the trial court denied his motion for expenses, appellant did not make a trial objection to the clothing worn by Gotch and Powell during their testimony, which was described on the record as brown cotton pants and a “scrub” shirt similar to uniforms worn by medical personnel. Thus, appellant has not preserved this point of error for our review. Tex. R. App. P. 33.1.

          Even if the trial court erred in denying appellant’s motion for expenses, appellant is unable to establish that the denial harmed him. None of the clothing worn by Gotch or Powell was marked in any way, nor did the clothing contain any marks to indicate that Gotch and Powell were incarcerated. Further, the jury was informed during the testimony of both Gotch and Powell that they had been arrested and incarcerated as a result of their respective roles in delivering cocaine to Bufkin. Although it is a violation of the Fourteenth Amendment to compel an accused to stand trial dressed in prison clothing, see, e.g., Randle v. State, 826 S.W.2d 943, 945 (Tex. Crim. App. 1992), this does not apply when a co-defendant or witness is presented to the jury in prison clothing. In Groh v. State, we noted that “[no] Texas court has found reversible error where a witness for the defense was presented to the jury in jail clothes.” 725 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). We overrule appellant’s fourth point of error.

Witness’ Previous Statement

          Finally, appellant contends that the trial court erred when it admitted into evidence the investigator’s notes that Gotch received before trial.

          On appellate review, a trial court’s admission or exclusion of evidence is subject to review under an abuse-of-discretion standard. Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996). If the trial court’s decision was within the bounds of reasonable disagreement, we will not disturb its ruling. Id. Texas Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401.

          Appellant contends that the investigator’s notes were irrelevant and that the trial court abused its discretion when it admitted the notes into evidence over appellant’s objection. Appellant argues that, since Gotch testified that the version of events contained in the investigator’s notes was untrue and denied using the notes in preparing for her testimony, the notes were irrelevant to any “fact that of consequence to the determination of the action.” Id. The notes, however, were relevant to the credibility of Gotch and to the accuracy of her testimony. The notes showed that Gotch had been contacted about her testimony by parties other than counsel, and supported a possible inference by the jury that her testimony had been coached by unknown parties. Further, Gotch revealed her own confusion by first testifying to a version of the drug transaction very similar to that contained in the investigator’s notes, then denying that the notes were accurate. This denial cast doubt on Gotch’s own previous trial testimony. Thus, the notes were indeed relevant to a key issue, the credibility of Gotch as a trial witness. We overrule appellant’s fifth point of error.  Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).