Brandon Johnson v. State

Johnson-Brandon v. State

IN THE

TENTH COURT OF APPEALS

No. 10-97-019-CR

     BRANDON JOHNSON,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the Criminal District Court No. 4

Dallas County, Texas

Trial Court # F93-54968-K

O P I N I O N

      Appellant Johnson appeals from his conviction for unlawful delivery of cocaine (under 28 grams), for which he was sentenced to five years in the Texas Department of Criminal Justice, Institutional Division, and a $500 fine.

      Undercover drug officer, Terrence King, went to the Globe Motel in Dallas where he had previously purchased drugs. Harold Riser was standing in the open door to Room 115 and asked King what he needed. King replied, "two dimes," which means two ten-dollar rocks of crack cocaine. King entered Room 115, followed by Riser. Riser directed King to loose rocks on the dresser. King picked up two rocks and attempted to pay Riser with a twenty-dollar bill but Riser told him to give the money to Appellant who was also in the room. Appellant said, "give me the money" and grabbed the money from King. King left and notified his uniformed-officers backup. Within five minutes the uniformed officers arrested Appellant and Riser.

      Witness Hickerson, a forensic chemist testified that she analyzed the suspected cocaine evidence and that it contained cocaine in an amount less than 28 grams.

      Appellant testified he knew Riser; that he saw Riser in front of his room; that Riser asked him to come into the room, and told him he had a problem with his girlfriend. Appellant admitted he took the money from King; that he gave it to Riser because it did not belong to him. Appellant testified he was not trying to help Riser sell drugs and that he was not involved in any way.

      Appellant was convicted by the jury under the law of parties. He elected to have the judge determine punishment. The judge sentenced him to five years in prison and a $500 fine.

      Appellant appeals on six points of error.

      Point one asserts the evidence is legally insufficient to support his conviction. Specifically, Appellant claims the evidence was insufficient to show that he acted as a party to the commission of the offense.

      When considering the legal sufficiency of the evidence, the court, viewing the evidence in the light most favorable to the verdict, must 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, 319, 99 S. Ct. 2781, 2789 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The trier of fact may accept or reject all or part of the testimony of any witness. Williams v. State, 784 S.W.2d 428, 430 (Tex. Crim. App. 1990).

      Appellant was charged with delivery of cocaine under 28 grams. "Deliver" is defined in the Heath & Safety Code as "to transfer," actually or constructively to another, a controlled substance. Section 481.002(8) (1992).

      The Penal Code states that a party may be criminally responsible for an offense if while "acting with intent to promote or assist in the commission of an offense, he solicits, encourages, directs, aids or attempts to aid" another person committing an offense. Section 7.02(a)(2) (1994).

      Thus, when an accused promotes or assists in the commission of an offense, he shares criminal responsibility under the law of parties. Haddad v. State, 860 S.W.2d 947, 950 (Tex. App.—Dallas 1993, pet. ref'd). The jury was charged on the law of parties. Circumstantial evidence may be used to prove the accused was a party to a criminal offense. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).

      Although an accused's mere presence at the scene does not make him a party to the offense, presence is a factor that may be considered to show he was a participant. Michael v. State, 864 S.W.2d 104, 107 (Tex. App.—Dallas 1993, no pet.); Eastman v. State, 636 S.W.2d 272, 274 (Tex. App.—Amarillo 1982, pet. ref'd).

      Appellant here was shown to have been much more than merely present. He admitted he was in the room with Riser for some five minutes before King arrived. In that time he observed three or four persons enter the room, locate rock cocaine at Riser's direction, pay Riser and then leave. Appellant admitted he knew that these people had come for the same reason as King. Appellant heard Riser ask King what he wanted; heard King tell Riser he was looking for "two rocks"; and heard Riser tell King "they are in here." He saw King select two rocks and attempt to pay Riser. He heard Riser tell King to pay him. King then handed Appellant the money and Appellant accepted it, saying, "give me the money."

      Appellant accepted the money as part of the entire transaction which constituted the delivery of the cocaine from Riser to King. Delivery was conditioned upon the payment of money. Thus the payment of money became an indivisible part of the delivery that occurred from Riser to King. Appellant aided Riser in the completion of the delivery by accepting the money from King and delivering it to Riser.

      The evidence is sufficient to show that Appellant participated in, aided, and assisted Riser in transacting the sale of cocaine to King. Any rational factfinder could have found Appellant guilty beyond a reasonable doubt.

      Point one is overruled.

      Appellant, by a supplemental point, asserts the evidence is factually insufficient to support his conviction.

      In reviewing the factual sufficiency of the evidence, this court views the evidence without the prism of "in the light most favorable to the prosecution" and will set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375 (Tex. App.—Austin 1992). Under the Clewis standard we consider the evidence of defense witnesses and the existence of alternative hypotheses.

      In this case, our factual sufficiency review shows that the verdict of guilty was a proper verdict. While Appellant claimed he was not trying to help Riser sell drugs and that he had "no idea" why King gave him the money, the evidence shows Appellant had been in the room several minutes before the transaction with King, and had witnessed several prior transactions where drugs were exchanged for money. The jury did not believe Appellant's story and rejected his version of the facts, as it had a right to do. Hughes v. State, 897 S.W.2d 285, 289 (Tex. Crim. App. 1994). Nothing in this case shows that the jury's rejection of Appellant's story was against the great weight and preponderance of the evidence so as to make its verdict manifestly unjust.

      Appellant's supplemental point of error is overruled.

      Point two asserts the trial court erred in its charge to the jury on the law of parties. Article 36.14, Texas Code of Criminal Procedure, provides in pertinent part:

The judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case.

Sections 7.01 through 7.03 of the Penal Code establish and control the law of parties. Section

7.01 provides in pertinent part:

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

Section 7.01(a)(2) and Section 7.02 provide in pertinent part:

A person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

The court's charge stated:

All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is criminally responsible. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids, or attempts to aid the other person to commit the offense. Mere presence along will not make a person a party to an offense.

      Additionally, the application paragraph of the court's charge required the jury, before

Appellant could be found guilty as a party, to find that Appellant acted intentionally or

knowingly with respect to his participation in the alleged transaction.

      Appellant requested the following instruction which the trial court denied:

In order to be found guilty of an offense committed by another, the evidence must show that a person committed an offense against the law and that the accused acted with intent to promote or assist such offense. The evidence must show that the accused knew that he was assisting in the commission of the offense and that he agreed that the offense should be committed. The acts of the accused must show an understanding and common design to commit the offense and that at the time of the offense, if any, the parties were acting together, each contributing some part towards the execution of a common purpose. Any agreement to commit an offense, if any, must occur before or contemporaneous with the commission of the offense.

The mere presence of the accused at the scene of the offense and even knowledge that an offense is being committed does not make him criminally responsible for an offense.

      Article 36.14, Texas Code Criminal Procedure provides that a defendant is not entitled to have instructions that are worded exactly as he requests as long as the charge correctly states the law and tracks the statute. Willis v. State, 802 S.W.2d 337, 341 (Tex. App.—Dallas 1990, pet. ref'd). Also a trial court may refuse a requested instruction that is already adequately covered by the charge submitted. Moody v. State, 827 S.W.2d 875, 893 (Tex. Crim. App. 1992). This is true even if the requested instruction is a correct statement of the law. Riley v. State, 802 S.W.2d 909, 910 (Tex. App.—Fort Worth 1991), affirmed, 830 S.W.2d 584 (Tex. Crim. App. 1992).

      In this case, the court's charge correctly stated the law and tracked the applicable statutes. In addition, the legal principles behind all of Appellant's requested instruction were adequately covered by the court's charge. Moody, 827 S.W.2d at 893; Willis, 802 S.W.2d at 341.

      Point two is overruled.

      Points three and four assert the trial court erred in its charge to the jury in its definitions of "intentionally" and "knowingly." Specifically, Appellant complains that the trial judge failed to limit the definition of "knowingly" and "intentionally" in the jury charge to the "nature" of Appellant's conduct.

      The trial court charged the jury:

A person acts intentionally, or with intent, with respect to the nature of conduct or with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of conduct or with respect to the circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of conduct when he is aware that his conduct is reasonably certain to cause the result.

      The court's application paragraph in the jury charge applied the definitions of "intentionally"

and knowingly" as follows:

Now keeping in mind all the law as contained in the court's charge, if you find and believe from the evidence beyond a reasonable doubt that Harold Riser on or about the 23rd of May 1994, in Dallas County, did unlawfully, knowingly or intentionally deliver, to-wit: constructively transfer as that term is defined herein, a controlled substance, to-wit, cocaine . . . to T. King, and you further find and believe from the evidence beyond a reasonable doubt that the defendant, Brandon Johnson, was present at the time of said delivery, if any, and did intentionally or knowingly act with intent to promote or assist in the commission of the offense, if any, by aiding or attempting to aid the said Harold Riser to commit the offense, then you will find the defendant to be guilty and so say by your verdict.

Unless you so find beyond a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."

      Appellant requested the following definition of "knowingly" and "intentionally":

A person acts intentionally or with intent with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.

A person acts knowingly or with knowledge with respect to the nature of his conduct or the circumstances surrounding his conduct when he is aware of the nature 0of his conduct or that the circumstances exist.

      Appellant requested the following application paragraph:

Now, if you find from the evidence beyond a reasonable doubt that on May 23, 1994, in Dallas County, that Harold Riser did unlawfully, knowingly and intentionally deliver, that is, transfer, constructively transfer, and offer to sell a controlled substance, to-wit, cocaine . . . to Terrence King, and that Brandon Johnson did then and there, with intent to promote and assist the alleged delivery of cocaine to Terrence King, and assist Harold Riser in said commission of the aforesaid alleged delivery of cocaine, then you will find Brandon Johnson guilty of delivery of cocaine, as charged in the indictment. If you do not so believe, or if you have a reasonable doubt as to any element of the offense for which Brandon Johnson is charged, you will say by your verdict "Not Guilty."

      The trial court denied the foregoing requests except as given in the court's charge. The court's charge correctly stated the law and tracked the applicable statutes, and the court did not err in denying Appellant's requested charge.

      Points three and four are overruled.

      Point five asserts the trial court erred in not sentencing Appellant under Senate Bill 1067, Acts 1993, Ch. 900, 73rd Legislature.

      Specifically, Appellant contends the trial court erred in punishing him as a first-degree felon because he should have been punished for a state-jail felony under Senate Bill 1067 of the 73rd Legislature. Appellant cites Section 311.031(G), Texas Government Code, which provides:

If the penalty, forfeiture, or punishment for any offense is reduced by the re-enactment revision, or amendment of the statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.

      Appellant argues that Senate Bill 1067, in reducing the punishment for the offense for which he was convicted, should be given effect and he should be punished under the lesser penalty imposed by such Bill.

      Appellant committed the offense on May 24, 1994, and was sentenced on April 28, 1995. Appellant was prosecuted and sentenced under Texas Health & Safety Code, Section 481.112 (1992), which was the statute in effect at the time of the commission of his offense. That statute provided his offense was a first-degree felony. Section 481112(a)(b) (1992).

      In 1993 the Legislature amended Section 481.112 to make the offense punishable as a state-jail felony with a lower punishment range. The amendment was effective for offenses committed on or after September 1, 1994. Tex. Health & Safety Code, Sec. 481.115 (1996).

      Section 2.08, article 2 of Senate Bill 1067 specifically provided:

The change in law made by this article applies only to an offense committed on or after the effective date of this article . . .

(b) an offense committed before the effective date of this article is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

      Since Appellant's offense was committed on May 23, 1994, before September 1, 1994, the effective date of the new statute, Appellant was correctly prosecuted and punished under the prior statute, which proscribed the offense as a first-degree felony. Wilson v. State, 899 S.W.2d 36, 38 (Tex. App.—Amarillo 1995, pet. ref'd); Fiori v. State, 918 S.W.2d 532, 533 (Tex. App.—Dallas 1995) are directly on point and in accord.

      Point 5 is overruled.

      The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 19, 1997

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