Dexter Terrance Byrd v. State ( 2010 )

Opinion issued June 10, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00077-CR

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Dexter TERRANCE Byrd, Appellant

V.

The State of Texas, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Case No. 1133766

MEMORANDUM OPINION

          A jury found appellant, Dexter Terrance Byrd, guilty of possession of a controlled substance with the intent to deliver.[1]  The trial court found appellant’s two enhancement paragraphs true and assessed punishment at 35 years’ imprisonment.  In one point of error, appellant contends that the evidence was legally and factually insufficient to sustain the verdict.

          We affirm. 

BACKGROUND

          On September 18, 2007, a police informant, Michelle Johnson, contacted Officer A. Vanderberry of the Houston Police Department. Johnson informed Officer Vanderberry that she was aware of an opportunity to buy crack cocaine from a person named Byrd.  Officer Vanderberry and other police officers drove to where Johnson was, and she called appellant using the speaker phone feature on her cell phone, which allowed the police officers to listen to her conversation with appellant.  Appellant agreed to sell Johnson $100 worth of crack cocaine.  The police provided Johnson with specially marked bills to purchase the drugs.  Appellant had instructed Johnson to meet him at a gas station in the 8200 block of West Bellfort, but he then called her and changed the location of the meeting to an apartment complex at 8201 West Bellfort. Officer Vanderberry and two other undercover police units positioned themselves to watch the transaction as it occurred.

          Between 3:30 and 4:00 p.m., Johnson went to the designated apartment complex, approached the passenger’s side door of a gold Chevrolet Impala, leaned down to speak with appellant, and purchased crack cocaine from him.  After appellant sold Johnson crack cocaine, the Impala drove away.  Officer Vanderberry followed the car until it was safely away from a school, and then he allowed marked police units to stop it. Appellant was in the passenger’s seat and Cassandra Pittman was in the driver’s seat.  The police searched Pittman and found ecstasy, powdered cocaine, and marijuana on her.  On the floor of the car they discovered the money they had given to Johnson to buy the drugs.  They also discovered 1.3 grams of crack cocaine in appellant’s sock, 7.1 grams of crack cocaine in a compartment in the passenger’s door, and an ounce of crack cocaine in “cookie form” in the glove box.[2]  The glove box also contained a variety of envelopes.  After the uniformed police officers stopped the car, Officer Vanderberry returned to the apartment complex and picked up Johnson, who turned over 1.7 grams of crack cocaine to him.

          The State obtained an indictment against appellant for possessing crack cocaine with the intent to distribute it.  In the indictment, the State alleged that appellant had two prior felony convictions.   

At trial, the State called four witnesses, and appellant testified in his own defense.  As its first witness, the State called Officer Vanderberry.  Officer Vanderberry testified that Johnson called him on September 18, 2007 to inform him that she could purchase crack cocaine.  He testified that before he sent Johnson to purchase drugs from appellant, he searched her to make sure that she did not have any drugs, personal money, or weapons on her and that, after searching her, he gave her specially marked money to use to purchase the drugs.  As Johnson was buying the crack cocaine from appellant, a nearby school released its students, and they began walking past the drug sale.  Officer Vanderberry decided to allow appellant to drive away so that the arrest would not endanger the school children.

          After appellant drove for approximately one mile, marked police cruisers stopped him.  The police arrested appellant and Pittman, found the “buy money” on the floor of the car, and discovered crack cocaine in appellant’s sock, in the car’s glove compartment, and in a compartment on the passenger’s side door.        On cross-examination, Officer Vanderberry testified that the police did not use video or audio recorders and that he was at least a hundred yards away from the transaction.  He testified, however, that he observed it through binoculars.  He also testified on cross-examination that he offered appellant a chance to help the police, but appellant said he was a “habitual and [that] there was nothing he could do to help himself.”

          The State then called Johnson.  She testified that she had been incarcerated for eight years for possessing a controlled substance.  Shortly after her release she became a confidential police informant. She testified that she contacts Officer Vanderberry almost every day with information regarding drug sales. She obtained appellant’s name and telephone number “from a passerby,” and, on September 18, she called Officer Vanderberry to tell him that she could purchase drugs.  After receiving her call, Officer Vanderberry set up the operation, drove to the area of town where Johnson lived, and picked her up.  From his undercover vehicle, Johnson called appellant on speaker phone and told him she wanted $100 worth of crack.  She and Officer Vanderberry drove to the location where appellant indicated he would be.  Johnson walked to the passenger’s side of a gold Impala, spoke with appellant, gave him the marked money, and received crack cocaine from him. The driver of the gold Impala then backed the car out and drove away.  The officers followed appellant, and then, after marked police cruisers pulled the gold Impala over, Officer Vanderberry returned for Johnson. She gave him the crack cocaine. Officer Vanderberry searched her, and she informed him that appellant had more crack cocaine in his possession.

          The State then called Officer S. Bryant of the Houston Police Department’s narcotics division.  He testified that he was in an unmarked pickup truck and that he was parked only a few parking spaces away from appellant’s car.  He could not see appellant’s face, but he was able to see that a male and a female were in the gold Impala.  He saw the people in the front of the car “digging in, like, their pockets, you know, just movement around the front compartment of the vehicle.”  He “observed a hand-to-hand transaction” involving “the sale of illegal narcotics for money.”  After the transaction occurred, the gold Impala drove away.  Officer Bryant “immediately backed up and followed the vehicle,” keeping the Impala in his sight until the marked patrol units pulled it over.  He identified appellant as the person on the passenger’s side of the vehicle.   

          The State then called Mona Medalla of the Houston Police Department’s crime laboratory.  She testified that she weighed and tested the substances that the police recovered from the gold Impala.  The substance appellant sold to Johnson contained cocaine and weighed 1.6 grams. The substance found in the passenger’s side door was crack cocaine that weighed 5.8 grams; the glove box contained cocaine and weighed 24.0 grams; and the substance recovered from appellant’s sock contained cocaine and weighed 0.3 grams.

          The State rested and the defense called appellant. Appellant admitted to prior convictions for possessing and selling drugs.  He testified that, although he was addicted to cocaine, he did not consider himself to be a drug dealer.  He admitted, however, that if he had drugs and his friends did not he would sell them small amounts.  He testified that Pittman sold drugs and that he often purchased them from her.  He would sometimes do small favors for Pittman, and she would pay him in drugs.  On September 18, 2007, he received a call from Johnson, who indicated that she wanted to purchase drugs from Pittman.  Appellant testified that Johnson called him because she knew that he was with Pittman.  On that day, Pittman had given him $50 and crack cocaine to ride with her to provide protection as she sold drugs.  They drove to the designated apartment complex, and Johnson approached his window.   After he made a few jokes with her, the transaction took place.  Appellant could not remember whether Johnson reached into the car to grab the crack rocks from Pittman or whether Pittman reached across him and handed the rocks to Johnson.  After completing the transaction they left the parking lot, drove off, and were stopped by the police and arrested.

          The jury found appellant guilty, and the trial court assessed punishment at 35 years’ imprisonment.

LEGAL AND FACTUAL SUFFICIENCY

In his sole issue, appellant argues that the evidence is legally and factually insufficient to establish that he possessed more than 4 grams but less than 200 grams of cocaine with the intent to distribute it because the only evidence that tied him to the offense was the informant’s testimony.   He contends that there is insufficient non-accomplice testimony to corroborate the informant’s testimony and that his mere presence at the scene of the crime is not evidence of his guilt.

A. Standard of Review

In assessing legal sufficiency, this Court must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).  We must “evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible.”  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  In conducting a legal-sufficiency review, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry, 4 S.W.3d at 740; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).  We therefore resolve any inconsistencies in the evidence in favor of the verdict, and “defer to the jury’s credibility and weight determinations.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Matson, 819 S.W.2d at 843. 

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, 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 v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must 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.  Id.  In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09.  As the judge of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson, 204 S.W.3d at 415.

B.      Analysis

A person commits the offense of possession of cocaine with intent to distribute it if he “knowingly manufactures, delivers, or possesses [cocaine] with intent to deliver.”  Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003).  “An offense under Subsection (a) is a felony of the first degree if the amount of [cocaine] is, by aggregate weight . . . four grams or more but less than 200 grams.” Id. § 481.112(d).

1. Possession

To prove unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the contraband, (2) was conscious of his connection with it, and (3) knew what it was. See id. §§ 481.002(38), 481.112(a) (Vernon 2003); Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  When contraband is not found on the accused or when the accused is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes a link between the accused and the contraband—i.e., independent facts and circumstances that link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it.  Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Swarb, 125 S.W.3d at 684. The link may be established through either direct or circumstantial evidence.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

The link terminology does not constitute a unique legal rule, but is only a shorthand way of expressing what must be proven to establish that drugs were possessed knowingly or intentionally.  Id.  Texas courts have identified several factors that may help to establish a link between the accused and the contraband, including whether (1) the defendant was present when the drugs were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the drugs and had access to them; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) the odor of drugs was present; (10) the defendant owned or had the right to possess the place where the drugs were found; (11) the drugs were found in an enclosed place; (12) the amount of drugs found was significant; (13) the defendant possessed a weapon; and (14) the defendant possessed a large amount of cash.  Swarb, 125 S.W.3d at 684.  Although several factors relevant to establishing the necessary link have been identified, the number of factors supported by the evidence is not as important as the “logical force” they collectively create to prove that a crime has been committed.  Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (quoting Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d)). Evidence that links the accused to the drugs must establish a connection that was more than fortuitous. Brown, 911 S.W.2d at 747.

Appellant contends that, without Johnson’s accomplice testimony, the State’s remaining evidence was insufficient to prove his guilt.  An accomplice is a person who, with the defendant, affirmatively engages before, after, or during the commission of an offense with the requisite state of mind.  Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).  Here, Johnson is not an accomplice because she lacked the intent to commit the offense. Moreover, even without her testimony, the evidence is sufficient to establish appellant’s guilt beyond a reasonable doubt.

Officer Vanderberry testified that Johnson informed the police that appellant had agreed to sell drugs to her, and a sting was set up.  After arriving at the designated apartment complex with Johnson, appellant was observed by the officers selling Johnson crack cocaine from the passenger’s side window of a gold Impala.   Appellant admitted that on the day of his arrest he was riding with Pittman, who drove the car but did not testify; and when the police stopped the Impala he was in the passenger’s seat.  Thus, appellant was present when the drugs were recovered.  When the police officers searched the car, the crack cocaine was in an enclosed space.  They discovered 5.8 grams of crack cocaine in the Impala’s glove compartment, 24 grams of crack cocaine in a compartment on the passenger’s side door, and 0.3 grams of crack cocaine in a bag in appellant’s sock.  The combined weight made this a significant amount of drugs.  Because appellant was seated in the passenger’s seat, the drugs were in his proximity and he had access to them.  Although the police also discovered drugs on Pittman, they did not find crack cocaine on her, and all of the crack cocaine was located on appellant’s side of the car.  Additionally, the police discovered the “buy money” in the car.  After appellant was arrested, he incriminated himself by telling officer Vanderberry that he was a “habitual” and that cooperating with the police by providing them with information would not help him.  The “logical force” of these factors provides a link to appellant that is more than fortuitous.  Robertson, 80 S.W.3d at 735.  There was no countervailing evidence.  Therefore, we conclude that the evidence is legally and factually sufficient to show that appellant possessed more than four grams of crack cocaine.

2. Intent to Deliver

To prove the offense of possession of a controlled substance with the intent to deliver, the State must prove, in addition to possession, that the accused intended to “transfer, actually or constructively, to another a controlled substance . . . .” Tex. Health & Safety Code Ann. § 481.002(8) (Vernon 2003).  Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence regarding an accused’s possession of the contraband. Utomi, 243 S.W.3d at 82.  Additional factors that courts have considered in determining whether the accused had the intent to deliver include (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused’s possession; (3) the manner of packaging; (4) the presence, or lack thereof, of drug paraphernalia for either use or sale; (5) the accused’s possession of large amounts of cash; and (6) the accused’s status as a drug user.  Id.

Here two police officers testified that they heard appellant agree to sell Johnson $100 worth of crack cocaine and that appellant called Johnson back and told her to meet him at a specific apartment complex.  When Johnson arrived at the designated apartment complex, they saw her purchase drugs from a person sitting on the passenger’s side of a gold Impala.  After stopping the Impala, the police discovered appellant in the passenger’s seat. Two police officers also testified that they found crack cocaine on appellant, and appellant testified that he had a bag containing crack cocaine in his sock when he was arrested.  The police officers testified further that they recovered the “buy money” from the gold Impala.  Appellant admitted that he had sold drugs before and that he had been arrested for selling drugs in the 1990s.

When we view the evidence in the light most favorable to the verdict, we cannot say that a rational jury could not have found beyond a reasonable doubt that the accused committed all essential elements of the offense.  Therefore, we conclude that the evidence was legally sufficient. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Burden, 55 S.W.3d at 612. 

Giving due deference to the jury’s weighing of the evidence, a neutral examination of the evidence shows that the evidence is not so weak that the jury’s finding appellant guilty of possession of cocaine with an intent to distribute is clearly wrong or manifestly unjust, and that the determination of guilt is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417. We hold the evidence is factually sufficient to prove appellant’s guilt.

We hold that the evidence is legally and factually sufficient to show that appellant intended to distribute more than four grams of crack cocaine.

We overrule appellant’s sole issue.

CONCLUSION

We affirm the trial court’s ruling.

Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

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

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[1]               See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003) (providing elements for offense of possession of substance listed in Penalty Group 1 with intent to distribute when amount is four grams or greater but less than 200 grams); see also Tex. Health & Safety Code Ann. § 481.102(3)(d) (Vernon 2003) (listing cocaine as substance in Penalty Group 1).

[2]               “Cookie form” is a form of crack cocaine before it is broken down into smaller units for individual sale.