Rodriquez v. State , 1994 Tex. App. LEXIS 1786 ( 1994 )

OVARD, Justice,

dissenting.

I respectfully dissent. I disagree with the majority’s conclusion that the trial court lacked sufficient facts to find that the appellant displayed or exhibited a firearm during the commission of the delivery of cocaine offense.

APPLICABLE LAW

As the majority acknowledges, the test is whether the testimony showed that the deadly weapon facilitated the commission of the associated offense. See Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App.1992); Jackson v. State, 857 S.W.2d 678, 682 (Tex.App.— Houston [14th Dist.] 1993, pet. ref'd). The weapon must be utilized to achieve an intended result, namely, the commission of a felony. See Jackson, 857 S.W.2d at 682. The issue is whether a rational trier of fact could determine from the evidence that appellant used or exhibited a firearm to facilitate, help, or assist in the commission of the delivery of cocaine offense. See Osborne v. State, 832 S.W.2d 407, 409 (Tex.App. —Houston [14th Dist.] 1992, no pet.).

APPLICATION OF LAW TO FACTS

In this case, the associated offense charged in the indictment was that appellant did “deliver, to wit: transfer, constructively transfer, and offer to sell a controlled substance, namely: COCAINE in an amount of less than 28 grams to K. Willis.” The case involves two visits by undercover Officer Willis to the apartment where he confronted appellant on each occasion.

I believe the facts, when viewed in the light most favorable to the verdict, support the affirmative finding that a deadly weapon was used during the commission of the delivery of cocaine offense. This is so because I conclude the facts show a continuation of the delivery offense through Willis’s second visit, including that point in time when appellant leveled a firearm at the officer.

Relevant facts supporting this conclusion for each visit include the following:

First Visit. Officer Willis testified that after appellant directed him inside the apartment, he followed appellant inside and told him he needed “two caps.” Willis said he meant by this, twenty dollars’ worth of cocaine. He gave appellant twenty dollars and appellant told Willis to stay there and he would be right back. Appellant returned only a few minutes later with one cap. Appellant told Willis, “Man, you’re not gonna like this, but this is all they had left.” Willis told appellant it did not appear to be twenty dollars’ worth. Willis said they argued about the amount. Appellant then instructed Willis to come back in about twenty minutes. He said by that time, the delivery would have arrived and appellant would then “be able to give you the other cap that I owe you.” Appellant did not return any money to Willis. Willis agreed to appellant’s offer and left the apartment with the one cap of cocaine that appellant had delivered to him.

Second Visit. At trial, the prosecutor asked Willis, “Did you eventually go back for the rest of the — to finish the rest of this cocaine deal?” Willis answered, “Yes, ma’am.” He explained that about an hour after the first visit, he knocked on the door of the same apartment. Another male answered the door and asked Willis what he needed. Willis saw appellant sitting on the floor wearing a trenchcoat. Willis testified he turned to appellant and said “Hey, you know, you remember me? I came here to get that cap you owe me.” He reminded appellant that appellant had told him during their first encounter to come back and Willis would receive the additional cap.

Willis said that at that point, the other male offered to share a “rock” of cocaine with Willis. Willis declined and again asked for the cocaine owed him. At this time, appellant stood up, pointed a small caliber pistol at Willis’s nose and accused Willis of being a “cop.” Willis denied being a cop, and said he was there to pick up the cocaine owed to him by appellant. Then, the other male opened the door and told Willis to leave. Appellant warned Willis, “don’t come back cop.” Willis then left the apartment.

DISCUSSION AND CONCLUSION

I am persuaded that a rational fact finder could conclude from these facts that a single offense occurred, which was comprised of both encounters between appellant and Officer Willis. On the record before us, I would hold that the fact finder could reasonably find that the delivery of cocaine was ongoing, and continued when Willis confronted appellant about the remaining promised cocaine during the second visit. Appellant exhibited the firearm at that time to consummate the drug delivery transaction to his advantage. In other words, he used the firearm to help him make more profit, rather than turn over the additional cocaine as he had agreed. Appellant’s use of the firearm also facilitated the delivery scheme by ridding the apartment of a suspected undercover “cop.”

The majority bases their reasoning on the facts that Willis had completed the delivery offense after his first visit and Willis said he went back to the apartment the second time to establish his credibility and to involve as many people as possible. From these isolated facts the majority concludes appellant did not use the deadly weapon to facilitate, but rather “just the opposite, he used the gun to make the officer leave the apartment.”

I believe the majority’s conclusion imper-missibly displaces the trial court’s rational finding by ignoring Willis’s testimony that (1) appellant admitted he only delivered part of the drugs owed Willis during the first visit; (2) at the first visit appellant offered to complete the delivery of the second cap when Willis returned; (3) during the second visit, when appellant’s offer to deliver the second cap was still unconcluded, appellant displayed the gun in order to force Willis, the suspected undercover “cop”, to leave; and (4) appellant displayed the gun in order to retain the twenty dollars from Willis without completing delivery of the amount of cocaine agreed upon. The majority holds that an officer’s expectation of another cocaine purchase on a second visit is not sufficient to link the two visits together as a single criminal episode. However, the record shows the officer’s actual expectation was not to make an additional purchase, but to complete the delivery of the cocaine case then in progress.

The following redirect testimony of Willis best illustrates why the fact finder could properly have found an ongoing delivery transaction when appellant exhibited the firearm:

Prosecutor: When you went there the first time you paid for twenty dollars’ worth of crack cocaine — I mean powder cocaine; is that correct?

Willis: Yes, ma’am.

Prosecutor: And you received half of that delivery—

Willis: Yes, ma’am.

Prosecutor: —or half of that requested amount of cocaine the first time.

Willis: Right. Yes, ma’am.

Prosecutor: And when you returned it was to get the other half of what was requested when you went there the very first time. Willis: Yes, ma’am.

Consequently, I would overrule appellant’s points of error, and affirm the trial court’s judgment that appellant used and exhibited a deadly weapon during the commission of the offense. See Wynn v. State, 847 S.W.2d 357, 360 (Tex.App.—Houston [1st Dist.]), aff'd, 864 S.W.2d 539 (Tex.Crim.App.1993). Osborne, 832 S.W.2d at 409.