Fox, Jody Wayne v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JODY WAYNE FOX,                                          )

                                                                              )              No.  08-02-00160-CR

Appellant,                          )

                                                                              )                   Appeal from the

v.                                                                           )

                                                                              )     Criminal District Court #5

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0115125-KL)

                                                                              )

O P I N I O N

Appellant Jody Wayne Fox appeals his conviction for the offense of possession with intent to deliver cocaine in an amount of four grams or more, but less than two hundred grams.  The jury found Appellant guilty of the charged offense and also found by special issue that Appellant used or exhibited a deadly weapon:  a firearm during the commission of the offense.  In assessing punishment, the trial court found the enhancement paragraph in the indictment to be true and sentenced Appellant to 20 years= imprisonment.  On appeal, he raises three issues, in which he challenges the factual sufficiency of the evidence to prove he possessed cocaine with intent to deliver and the legal and factual sufficiency of the evidence to support the jury=s finding that he used or exhibited a deadly weapon.  We affirm.

On the evening of July 18, 2001, Detective Gary Huddleston, a detective in the Narcotics Division of the Balch Springs Police Department, and his partner Sergeant B.W. Smith were conducting surveillance on room number six of the Golden Motel, 2605 U.S. Highway 175 in Seagoville, Dallas County, planning how to safely execute a search warrant at the location.  As they watched, they saw a female exit the motel room and walk towards the motel office. Moments later, the Appellant left the motel room with trash in his hands, and walked in the opposite direction towards the dumpster.  The officers decided to take advantage of the opportunity to execute the search warrant while Appellant was outside the motel room.  After dumping the trash, Appellant started to walk back to his room, at which point the officers drove their unmarked GMC pickup truck around and cut off Appellant=s path.  Appellant was subdued in the parking lot and handcuffed without incident.^[1]  Back-up officers from the Seagoville Police Department arrived minutes later. Appellant was placed in the back-up officers= marked squad car and Detective Huddleston informed Appellant of his Miranda rights after giving Appellant, who was screaming and very emotional, a few minutes to cool down while sitting alone in the patrol car.  Detective Huddleston told Appellant that the officers had a search warrant to search his place of residence for narcotics.  Appellant=s initial reply was not admitted into evidence.  Detective Huddleston testified that Appellant then voluntarily told him that he had seen the officers parked outside and had thrown a bag containing the narcotics behind the dresser when he exited his motel room.  Detective Huddleston relayed this information to the officers conducting the motel room search.

The officers did not have to use force to gain entry to the motel room.  However, a dresser had been placed against the door, which made entry a little difficult. In Sergeant Smith=s opinion, the dresser was used as a door barricade.  In searching the motel room, Sergeant Smith observed a camcorder seated on the window ledge, facing out into the parking lot.  Videotapes recovered from the room showed footage of the parking lot area in front of the motel room, a view which was consistent with where the camcorder was placed inside the room.  The officers recovered a loaded .38 revolver handgun on a nightstand by the bed. There was a heavy, closed safe approximately two feet high, set on the floor in the room.  The officers recovered knives from the safe after Appellant provided the safe combination.  Hand-held night optics were found on the floor at the foot of the bed.  The officers found a plastic bag on the floor, which contained a postal scale, some clothes, and other items.  A small bag of marijuana was found on the dresser.  Up against the wall between the safe and the nightstand, officers found a loaded assault rifle.  The officers also recovered a substance, later determined to be 6.49 grams of crack cocaine, including adulterants and dilutants, in the location where Detective Huddleston had instructed them to look.

Standard of Review

When reviewing the legal sufficiency of the evidence, we review 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.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, nor do we evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992).  Our duty, rather, is to determine if the explicit and implicit findings of the jury are rational by reviewing all the evidence is the light most favorable to the verdict.  Id. at 421-22.  In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).

In reviewing the factual sufficiency of the evidence, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is either so obviously weak as to undermine confidence in the jury=s determination or, although adequate if taken alone, is greatly outweighed by contrary proof.  King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).  We examine the evidence that tends to prove an elemental fact in dispute and compare it with the evidence that tends to disprove that fact.  Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).  We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Wardrip v. State, 56 S.W.3d 588, 591 (Tex.Crim.App. 2001).

Intent to Deliver

In his first issue, Appellant contends that the evidence was factually insufficient to prove his intent to deliver the cocaine in his possession.  On appeal, Appellant argues that the evidence presented was consistent with his personal use of cocaine, rather than an intent to deliver. Intent to deliver may be shown by circumstantial evidence.  Williams v. State, 902 S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d).  Expert testimony by experienced law enforcement officers may be used to show an accused=s intent to deliver.  See Mack v. State, 859 S.W.2d 526, 529 (Tex.App.--Houston [1st Dist.] 1993, no pet.); Branch v. State, 833 S.W.2d 242, 244-45 (Tex.App.--Dallas 1992, pet. ref=d).  Factors considered in proving intent to deliver include:  (1) the nature of the location at which the defendant was arrested; (2) the quantity of the controlled substance in the defendant=s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia (for either drug use or sale); (5) the defendant=s possession of large amounts of cash; and (6) the defendant=s status as a drug user.  Williams, 902 S.W.2d. at  507.

At trial, Sergeant Smith stated that the officers found no drugs on Appellant=s person.  Sergeant Smith further testified that the officers found rolling papers for the marijuana, but did not find any drug paraphernalia for use of crack cocaine nor did they find any individual plastic bags in the motel room.  Based on training and his experience, Sergeant Smith opined that the thirteen or so crack cocaine rocks would probably sell for $25 to $30 a piece.  In his opinion, the amount of crack cocaine recovered indicated that it was not for personal use, but rather indicated that Appellant was a drug dealer.

Detective Anthony Gipson, a narcotics detective with the Dallas Police Department, testified as the State=s expert witness regarding intent to deliver in narcotics cases in Dallas County.  Detective Gipson testified that the average user of crack cocaine would usually smoke approximately one-tenth of a gram at a time.  This single Ause@ has a street value of $10 on the streets of Dallas County.  The size of the crack cocaine rocks in this case were larger than an individual would use for a single use.  Detective Gipson estimated that they were $50 pieces of crack cocaine, with each individual piece containing roughly six single uses. Based on his familiarity with how drug dealers keep and package crack cocaine for sale, Detective Gipson stated that about fifty percent of drug dealers sell their cocaine in individual baggies, while the other fifty percent sell it loose.  Detective Gipson examined the crude gram scale recovered from Appellant=s motel room and testified that such scales are frequently used by drug dealers.  According to Detective Gipson, a person purchasing drugs would not usually have a scale.  A scale comes into play when an individual is planning to resell cocaine and is trying to sell uniform sizes.

In Detective Gipson=s opinion, 6.49 grams of crack cocaine is approximately 65 individual uses.  This amount is more than any individual user would have for their personal use, but it would not be an uncommon amount for a lower-level dealer.  According to Detective Gipson, 6.49 grams of crack cocaine would be more than individual usage for two people and it was highly unlikely that a couple would have that much crack cocaine for their personal use.

Detective Gipson further testified that the presence of two loaded weapons and scales was consistent with a location that is set up for the sale of narcotics.  He also stated that it was very common to find surveillance equipment in drug sales locations.  The presence of night vision goggles at the location bolstered Detective Gipson=s opinion that drug sales occurred at the location.  Based on all the evidence recovered in this case, it was Detective Gipson=s expert opinion that Appellant possessed the narcotics with the intent to sell them and not for personal use.

Detective Gipson=s testimony clearly indicated that possession of 6.49 grams of crack cocaine in large uniform pieces, with measuring scales, was consistent with its possession with an intent to deliver.  Moreover, the officers recovered no drug paraphernalia for the use of crack cocaine in their motel room search.  The quantity of crack cocaine indicated to both Detective Gipson and Sergeant Smith that Appellant was a drug dealer, rather than his possession of the narcotics for personal use.  Appellant offered no contrary evidence at the guilt-innocence phase of trial. Viewing all the evidence in a neutral light, we find that the evidence of Appellant=s intent to deliver is not so obviously weak as to undermine confidence in the jury=s determination nor was the jury=s verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Finding the evidence factually sufficient to support the jury=s finding of possession of cocaine with intent to deliver, we overrule Issue One.

Deadly Weapon Finding

In Issues Two and Three, Appellant argues that the evidence was legally and factually insufficient to support the jury=s affirmative finding that he used or exhibited a deadly weapon, to wit:  a firearm. See Tex.Code Crim.Proc.Ann. art. 42.12, ' 3g (Vernon Supp. 2003).  In determining the legal sufficiency of the jury=s deadly weapon finding, this Court must determine whether a rational trier of fact could have found beyond a reasonable doubt that the mere possession of firearms facilitated the associated felony.  Gale v. State, 998 S.W.2d 221, 224 (Tex.Crim.App. 1999).  The Ause@ of a deadly weapon during the commission of a felony offense extends to any employment of a deadly weapon, including its simple possession, if such possession facilitated the associated felony.  Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App. 1989).

In the present case, a loaded .38 revolver handgun and a loaded assault rifle were located in plain view near the nightstand by the bed. According to Detective Huddleston=s testimony, when Appellant exited his motel room, he purposely threw the bag containing the crack cocaine behind the dresser.  Sergeant Smith testified that the motel room was fairly small.  Detective Gipson, as the State=s expert witness, testified that it was common for drug dealers to arm themselves to protect against robberies, especially in drug locations doing a lot of sales to people who are addicted to crack cocaine. Prior to exiting the motel room, Appellant would have had convenient access to the loaded weapons while in close proximity to the contraband.  Based on the evidence presented at trial, we conclude a rational jury could have found beyond a reasonable doubt that Appellant Aused@ a deadly weapon during the commission of the offense of possession of cocaine with intent to deliver.  We overrule Appellant=s second issue. 

In Appellant=s third issue, he contends that the evidence is factually insufficient to support the jury=s affirmative deadly weapon finding. Specifically, Appellant asserts that although he did not testify during the guilt-innocence phase of the trial, he presented a plausible and largely unrefuted explanation of why he possessed weapons in his motel room in his testimony during the punishment phase of trial.  However, Appellant presented no contrary evidence during the innocent-guilt phase of trial before the jury.  Applying the appropriate standard of review for factual sufficiency challenges, we find that the evidence is not so obviously weak as to undermine confidence in the jury=s determination nor was the jury=s verdict overwhelmingly outweighed by contrary evidence as to be clearly wrong and unjust.  See Johnson, 23 S.W.3d at 11.  We overrule Issue Three.

We affirm the trial court=s judgment.

October 2, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Sergeant Smith apprehended the female, who was about two doors down from the motel room and she complied with his instruction to lie on the ground.  She was handcuffed and waited outside, sitting on the curb in front of the motel on the sidewalk during the incident.  After questioning, she was released without arrest.