Dearmon, Milton Douglas v. State ( 2006 )

Affirmed and Memorandum Opinion filed March 30, 2006

Affirmed and Memorandum Opinion filed March 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01045-CR

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MILTON DOUGLAS DEARMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 983,309

M E M O R A N D U M   O P I N I O N

A jury convicted appellant of possession with intent to deliver a controlled substance, namely cocaine, weighing more than one gram and less than four grams by aggregate weight, including any adulterants and dilutants, and the trial court assessed punishment at 12 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  See Tex. Health & Safety Code Ann. ' 481.112(c) (Vernon 2003).  Appellant challenges his conviction in two issues, contending the evidence was legally and factually insufficient to prove appellant intended to deliver the controlled substance.  We affirm.

Factual and Procedural Background

On April 5, 2005, two Constable deputies, Deputy David Mayes and Deputy George Cleary, went to appellant=s home to investigate a series of motor vehicle burglaries.  When they arrived, they found appellant out front working on a vehicle.  The officers informed appellant they had information linking him to a burglary and asked him to sign a consent to search form for his vehicle and home.  Appellant agreed and signed the form. 

The officers searched appellant=s car and found stereo speakers.  Appellant showed Deputy Cleary to his bedroom and pointed out the bed in which he slept.  While looking for credit cards or insurance papers, Deputy Clearly looked between the two mattresses and found fourteen bags containing a substance, which later tested positive for cocaine.  Appellant stated he received the bags from a person named AZ.@  Deputy Cleary placed the bags in a small film canister found in appellant=s bedroom and transported them to the police station for testing.  After the substance tested positive for cocaine, the officers arrested appellant.

At trial, the State presented three witnesses, deputies Mayes and Cleary and a forensic chemist, who tested the cocaine.  Appellant presented one witness, his sister, who was present at the house on April 5.  After hearing the evidence, the jury found appellant guilty of possession with intent to deliver a controlled substance. 

Discussion

I. Standards of Review

Appellant argues on appeal the evidence at trial was legally and factually insufficient to prove appellant intended to deliver cocaine.  Appellant concedes the evidence is sufficient to support a conviction for possession of a controlled substance, but he disputes the sufficiency of the evidence to show intent to deliver.  In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury is the sole judge of the credibility of the witnesses and chooses whether or not to believe all or part of a witness=s testimony.  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Thus, if there is evidence establishing guilt beyond a reasonable doubt, we are not authorized to reverse the judgment on sufficiency of the evidence grounds.

In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence may be factually insufficient in two ways.  Id.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable doubt standard could not have been met.  Id. at 484B85.  Our evaluation of the evidence should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of the evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  

II. What evidence is required to prove intent to deliver?

In a possession with intent to deliver case, intent to deliver may be proved by circumstantial evidence.  Reed v. State, 158 S.W.3d 44, 48 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  Intent is a question of fact to be determined by the trier of fact and may be inferred from the acts, words, or conduct of the accused.  Id.  Intent can be inferred from circumstantial evidence, such as the quantity of drugs possessed or the manner of packaging.  Branch v. State, 599 S.W.2d 324, 325 (Tex. Crim. App. 1979). Other circumstantial evidence may include whether the defendant himself is a drug user, whether there is evidence of drug transactions, the nature of the location in which the defendant was found, proximity to money, and the presence of drug paraphernalia for either drug use or sale.  See Williams v. State, 902 S.W.2d 505, 507 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); Smith v. State, 737 S.W.2d 933, 941 (Tex. App.CDallas 1987, pet. ref=d).  The State may also use expert testimony by experienced law enforcement officers to show a defendant=s intent.  See Mack v. State, 859 S.W.2d 526, 528B29 (Tex. App.CHouston [1st Dist.] 1993, no pet.).  These factors are not required elements of which all must be present, but are evaluative factors for the court to consider when reviewing the sufficiency of the evidence.  See, e.g., Taylor v. State, 106 S.W.3d 827, 831B32 (Tex. App.CDallas 2003, no pet.) (evidence sufficient to support conviction when amount seized was 1.3 grams, which constituted approximately thirteen individual uses and defendant attempted to flee when arrested); Reece v. State, 878 S.W.2d 320, 325B26 (Tex. App.CHouston [1st Dist.] 1994, no pet.) (evidence sufficient to support conviction for possession with intent to deliver when defendant possessed 12 individually wrapped rocks of cocaine and $222 in cash).^[1]  If conflicting inferences concerning a defendant=s intent exist, we must presume, even if it does not affirmatively appear in the record, the trier of fact resolved such conflicts in favor of the prosecution, and we must defer to that resolution.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). 

III. Did the State produce sufficient evidence to prove intent to deliver?

Appellant contends Deputy Mayes= testimony is legally and factually insufficient to support conviction for possession with intent to deliver.  He argues the State produced no testimony about how much cocaine is typically used by an individual or how long 2.52 grams might last.  He also argues Deputy Mayes= reference to Atools@ is confusing because it does not specify whether he meant tools for personal use or tools for preparing products for sale.  We will evaluate this issue in light of the circumstantial evidence presented in order to determine whether the evidence is legally and factually sufficient to prove appellant possessed the controlled substance with the intent to deliver it to others. 

The evidence shows that 2.52 grams of cocaine were found in fourteen separate packages in the mattress in appellant=s home.  In addition, Deputy Mayes testified he received some minimal training about what amounts of drugs are used for personal use and what amounts are for sale. He testified his training consisted of reviewing different types of rocks and packaging, what they are commonly used for, and what paraphernalia you usually find with the drugs.  He testified his training taught him that when you find an area with many packages, those packages are usually for sale as opposed to personal use, but when you find drugs for personal use, there will usually be tools present to use the drugs.  He testified he did not recall any training whether the amount of drugs, in grams, indicated personal use.  When asked to give his opinion about whether or not the substance found in appellant=s bedroom was for personal use, the trial judge sustained defense counsel=s objection.  The prosecutor then abandoned this line of testimony and moved on to other questions. The prosecutor made no other attempts to elicit testimony from any witness about appellant=s intent to deliver, but the prosecutor did argue to the jury during closing how the evidence presented proves intent to deliver. 

Evidence that even this seemingly small quantity of cocaine was packaged in individual units is evidence in support of an intent to sell it.  See, e.g., Reece, 878 S.W.2d at 325 (police officer testified that a user of crack cocaine will normally possess only two or three rocks of cocaine at a time); Morrow v. State, 757 S.W.2d 484, 487 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d) (police officer describing one to two grams of cocaine as an amount typically purchased by a single user).  Furthermore, other courts of appeals have upheld convictions for intent to deliver for lesser quantities and with similar packaging.  See, e.g., Taylor v. State, 106 S.W.3d at 829 (1.37 grams); Rhodes v. State, 913 S.W.2d 242, 246  (Tex. App.CFort Worth 1995), aff=d, 945 S.W.2d 115 (Tex. Crim. App. 1997) (2.09 grams); Reece, 878 S.W.2d at 322 (1.4 grams in 12 packets);^[2] Branch v. State, 833 S.W.2d 242, 244B45 (Tex. App.CDallas 1992, pet. ref=d) (17 packets). Evidence of the amount of a controlled substance merely raises an inference about appellant=s intent. Payton v. State, 830 S.W.2d 722, 730 (Tex. App.CHouston [14th Dist.] 1992, no pet.). 

In analyzing appellant=s intent, we must presume the trier of fact resolved any conflicting inferences of intent in favor of the prosecution.  Matson, 819 S.W.2d at 846.  The State presented evidence about intent to deliver through Deputy Mayes= testimony that he received training to distinguish possession with intent to deliver from possession for personal use based on the amount of drugs found.  The officers did not give any description of what quantity might suggest an intent to deliver, only that larger quantities create such an inference.  Here, even if appellant=s possession of the cocaine is as consistent with personal use as it is with delivery, we must presume the trier of fact resolved the conflict in favor of the prosecution.  Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant possessed the controlled substance with an intent to deliver.  Therefore, the evidence is legally sufficient to find appellant guilty of possession with intent to deliver.  We overrule appellant=s first issue. 

With regard to his factual sufficiency challenge, appellant presented the testimony of his sister, Shlinda Dearmon, to rebut intent to deliver.  Shlinda lived in the house with appellant and testified about the search of appellant=s car and home.  She did not see if the officers seized anything.  Appellant also argues that because there was no expert testimony that 2.52 grams of cocaine packaged in fourteen individual units indicates an intent to deliver, that evidence cannot support his conviction.  We know of no authority requiring such testimony and appellant has not directed us to any such authority.  Appellant further argues that because no paraphernalia or cash was found and he was not arrested in a known drug area, there is insufficient evidence of intent.  Those factors are not exclusive, but are merely used to evaluate the presence of an intent to deliver.  Appellant argues that although the evidence suggests appellant may be a burglar who stole to support a cocaine habit, no evidence supports his status as a cocaine dealer.  Appellant=s interpretations of the evidence, however, do not provide sufficient contrary proof outweighing the jury=s finding of guilt.  See Zuniga v. State, 144 S.W.3d at 484B85. Considering all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt.  Therefore, the evidence is factually sufficient to find appellant guilty of possession with intent to deliver.  We overrule appellant=s second issue. 

Conclusion

Having considered and overruled appellant=s two issues on appeal, we affirm the trial court=s judgment.    

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed March 30, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The Reece court reversed the defendant=s conviction on probable cause points of error, but the court overruled the defendant=s points of error pertaining to sufficiency of the evidence to show possession with intent to deliver.  Reece v. State, 878 S.W.2d 320, 324B26 (Tex. App.CHouston [1st Dist.] 1994, no pet.).  

^[2]  See supra note 1.