Charles Wayne Burnett v. State

Opinion issued October 9, 2008

  In The

Court of Appeals

For The

First District of Texas  

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NO. 01-07-00960-CR

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CHARLES WAYNE BURNETT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 51458

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MEMORANDUM OPINION

A jury found appellant, Charles Wayne Burnett, guilty of the offense of possession with intent to deliver a controlled substance, namely, cocaine, ⁽¹⁾ in an amount of more than one gram but less than four grams. After appellant pleaded true to the allegations in four enhancement paragraphs that he had four prior felony convictions, the trial court assessed his punishment at confinement for thirty-five years. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and that the trial court erred in denying his motion to suppress evidence.

We affirm.

Factual Background

Sweeny Police Department Sergeant J. Bills testified that Vendetta Wilcox, an undercover informant, arranged a meeting to purchase narcotics from appellant at a feed store on March 11, 2006. Before the meeting, Sergeant Bills provided Wilcox with ten marked twenty-dollar bills and a tape recorder. Bills also searched Wilcox's mouth, purse, and clothing to ensure that she was not carrying narcotics. For acting as an informant, Wilcox received twenty-five dollars. Sweeny Police Department Officer T. Krenek, working undercover, drove Wilcox to the feed store, and Bills trailed behind them in an unmarked car, from which he saw Krenek park her car behind appellant's car in the feed store parking lot.

Wilcox testified that while Officer Krenek remained in her car, Wilcox went into appellant's car and, with the marked twenty-dollar bills, purchased $200 worth of narcotics from appellant. Wilcox explained that she tape-recorded the narcotics transaction, and the recording demonstrated that Wilcox counted out the twenty dollar bills and that appellant had more crack cocaine to sell.

Officer Krenek testified that she drove Wilcox to the feed store, and, after Wilcox returned to Krenek's car, Wilcox had a matchbox containing seven rocks of crack cocaine. Krenek added that she watched Wilcox during the entire narcotics transaction, and she did not observe her remove narcotics from any body cavity.

On March 12, 2006, Sergeant Bills executed a search warrant at appellant's house in connection with the narcotics transaction. Police officers found "a white powder substance" in appellant's kitchen, and Bills found eight of the previously marked twenty-dollar bills from the narcotics transaction in appellant's wallet inside of appellant's truck. On cross-examination, Bills conceded that appellant's wife was also at appellant's house when the officers conducted their search and that he did not conduct a "strip search" of Wilcox prior to the meeting with appellant. Bills also added that officers found narcotics in a purse inside the home.

Appellant presented the testimony of Lavern Wilcox Gooden, Wilcox's mother-in-law, who testified that Wilcox was not a credible witness.

Sufficiency of the Evidence

In his first point of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the State "failed to show beyond a reasonable doubt that [a]ppellant exercised actual care, custody, control, or management of the cocaine."

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting our legal sufficiency review, we are mindful that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing our review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).  

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called 'thirteenth juror.'" Watson, 204 S.W.3d at 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417.

A person commits the offense of possession of a controlled in an amount more than one gram but less than four grams if he knowingly or intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.002(5), 481.102(3)(D) (Vernon Supp. 2008), 481.112(a), (c) (Vernon 2003). To prove possession with intent to deliver, the State must prove that the defendant (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Id. § 481.002(38) (Vernon Supp. 2008), § 481.112(a) (Vernon 2003); Parker v. State, 192 S.W.3d 801, 805 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). Possession is "a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." Tex. Penal Code Ann. § 6.01(b) (Vernon 2003).

The State may offer direct or circumstantial evidence to prove a defendant's possession of narcotics. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995). When the State relies on circumstantial evidence to prove that the defendant knowingly possessed narcotics, the State must link a defendant to the narcotics in such a manner that one could reasonably conclude that the defendant knew of the existence of the narcotics and exercised control over it. Id.; see also Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006) (recognizing that necessary connection between defendant and narcotics may be referred to as "affirmative link" or simply as "link"); Utomi v. State, 243 S.W.3d 75, 79 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd) (noting that State must link defendant to narcotics when narcotics are "not found on the [defendant's] person"). Whether direct or circumstantial evidence is used, the State must establish that the defendant's connection with the narcotics was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). In determining whether the defendant actually knew that he possessed cocaine, the jury is allowed to infer the defendant's knowledge from his acts, conduct, remarks, and from the surrounding circumstances. Ortiz v. State, 930 S.W.2d 849, 852 (Tex. App.--Tyler 1996, no pet.); Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.--El Paso 1995, pet. ref'd); see also Gutierrez v. State, 628 S.W.2d 57, 60 (Tex. Crim. App. [Panel Op.] 1980) (concluding that jury could reasonably infer from independent facts and circumstances that defendant knew of narcotic's existence), overruled on other grounds, Chambers v. State, 711 S.W.2d 240 (Tex. Crim. App. 1986).

Appellant argues that the evidence is legally insufficient because the "State's only witness to the actual drug transfer was a convicted felon" and that Wilcox "could have easily hidden the drugs on her body because the police failed to properly search her before her meeting with [a]ppellant."

Viewing the evidence in the light most favorable to the verdict, Sergeant Bills searched Wilcox before the meeting with appellant. The search took place in the presence of Officer Krenek, who later saw Wilcox go into appellant's car, meet with appellant, and return to Krenek's vehicle with seven rocks of crack cocaine. Wilcox testified that appellant had sold her the crack cocaine. Also, the tape recording verifies that a narcotics transaction had occurred between appellant and Wilcox. Moreover, when Sergeant Bills searched appellant's truck on March 12, 2006--the day after the narcotics transaction--he found eight of the ten marked twenty-dollar bills in appellant's wallet.

In sum, the evidence shows that appellant sold seven rocks of crack cocaine to Wilcox, directly linking appellant to the narcotics and establishing his care, custody, control, and management over the narcotics. Accordingly, we hold that the evidence is legally sufficient to support the jury's implied finding that appellant "knowingly" possessed, with intent to deliver, a controlled substance.

Appellant argues that the evidence is factually insufficient to support his conviction because Wilcox could have pulled "narcotics from her vagina while sitting in appellant's car." Appellant asserts that Officer Krenek did not actually see appellant and Wilcox conduct the hand-to-hand transaction of money for crack cocaine. Appellant also asserts that Sergeant Bills did not "strip search" Wilcox before she met with appellant. Appellant contends that Wilcox could have had the narcotics on her the entire time.

Although Wilcox was the only witness to the transaction, we must defer to the jury's determination that she was credible. See Marshall, 210 S.W.3d at 625. Wilcox testified that appellant sold her seven rocks of crack cocaine. Wilcox's testimony was buttressed by the tape recording of the transaction and by Officer Krenek's testimony. Moreover, Sergeant Bills later found the previously marked twenty-dollar bills, which Bills had given to Wilcox to buy the crack cocaine from appellant, in appellant's wallet.

We conclude that the evidence is not so obviously weak as to make the verdict clearly wrong and manifestly unjust, nor is the proof of guilt against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that appellant "knowingly" possessed, with intent to deliver, a controlled substance.

We overrule appellant's first point of error.

Motion to Suppress Evidence

In his second point of error, appellant argues that the trial court erred in denying his motion to suppress evidence because the affidavits supporting the search warrant "do not contain evidence that supports [Sergeant Bills's] statement that [Wilcox was] reliable and credible enough to provide the probable cause for the execution of the search warrant."

An application for a search warrant must be supported by an affidavit. Tex. Code Crim. Proc. Ann. arts. 1.06, 18.01(b) (Vernon 2005). The affidavit should set forth the facts that establish probable cause. Id. art. 18.01(b). Probable cause exists when the facts given to a magistrate are sufficient to conclude that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); McKissick v. State, 209 S.W.3d 205, 211 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).

When reviewing the sufficiency of an affidavit, we do not engage in a de novo review; instead we give great deference to the magistrate's determination of probable cause. Swearingen v. State, 143 S.W.3d 808, 810-811 (Tex. Crim. App. 2004); McKissick, 209 S.W.3d at 211. A search warrant is adequate when the magistrate has a substantial basis for concluding that probable cause was shown. Swearingen, 143 S.W.3d at 810-811; McKissick, 209 S.W.3d at 212. The sufficiency of the affidavit is determined by considering the totality of the circumstances set forth within the four corners of the affidavit. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983); Swearingen, 143 S.W.3d at 811.

Appellant argues that the affidavits did not provide probable cause because Sergeant Bills's statement that Wilcox "has been credible and reliable" is conclusory. Appellant disputes Wilcox's credibility, asserting that Wilcox was the only witness to the narcotics transaction and no female police officer performed a cavity search on Wilcox prior to the transaction.

Sergeant Bills executed two affidavits, one of which details a controlled buy of crack cocaine from appellant. In his affidavits, Bills describes (1) Wilcox's contact with appellant to purchase crack cocaine, (2) Bills's providing Wilcox with ten marked bills to use in the transaction, (3) Wilcox's use of a tape recorder to record the narcotics transaction, (4) Wilcox's meeting with appellant, (5) Wilcox's immediate return to Officer Krenek's car, where she turned over seven rocks of crack cocaine to Krenek and told Krenek that she received the crack cocaine from appellant, and (6) appellant's telling Wilcox that he had more crack cocaine at his residence that Wilcox could buy when she had the money.

The circumstances of a "controlled buy," standing alone, may be sufficient to reasonably confirm an informant's information and give probable cause to issue a search warrant. Sadler v. State, 905 S.W.2d 21, 22 (Tex. App.--Houston [1st Dist.] 1995, no pet.). In Sadler, an affidavit describing a controlled buy was not deemed conclusory because the police officers' control of the informant validated the affiant's reliance upon the informant's information. Id. Sergeant Bills's control of the informant in this case is similar to the control described in Sadler. See id. As in Sadler, Sergeant Bills searched Wilcox before her meeting with appellant and obtained information about additional contraband from the informant. See id. Moreover, the police officers in this case were able to keep the informant in view during the whole transaction, and Wilcox recorded the meeting on audio tape. Although Wilcox did not see any other narcotics, appellant told her that he "had plenty of crack" to sell and "that he would have it [if she would just] call him at his residence."

In sum, there are facts articulated within the four corners of Sergeant Bills's affidavits that provided the magistrate with a substantial basis to find probable cause to issue the search warrant. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

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

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See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2008), § 481.112(a), (c) (Vernon 2003).