Waymond Eugene Sanders v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00168-CR
WAYMOND EUGENE SANDERS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
A jury found Appellant Waymond Eugene Sanders guilty of possession of
cocaine. After finding the enhancement paragraphs true, the same jury
assessed his punishment at forty years’ confinement in prison, and the trial court
sentenced him accordingly. In this appeal, he raises the issue of the legal and
factual sufficiency of the evidence. After determining the evidence sufficient, we
affirm the judgment of the trial court.
1
See Tex. R. App. P. 47.4.
BACKGROUND
In March 2009, Fort Worth Police narcotics officers Lopez and Coleman
received a tip from a confidential informant (CI) that Appellant was selling crack
cocaine near a local car wash. They parked across the street and observed
Appellant make hand-to-hand transactions with different people out of his older
model Cadillac. Based upon their training and experience and the information
from the CI, they believed that they were observing drug transactions.
Lopez contacted patrol officers Reese and Green, who were nearby in
separate patrol cars, and told them of his and Coleman’s suspicions, and that
they would be wanting the patrol officers to try to stop Appellant when he left the
car wash location. The narcotic officers could not make a stop if they observed
him committing a traffic offense because they were in an unmarked vehicle and
not in uniform.
Reese proceeded to a point near the car wash. While he watched
Appellant’s car, he saw a young African-American woman open the passenger
door, reach in, then close the door, and walk away.
When Appellant left the car wash, Lopez and Coleman followed. They
notified Reese and Green who, in turn, followed them. Appellant stopped briefly
at an auto detail shop where Lopez and Coleman again observed hand-to-hand
transactions similar to those at the car wash.
He left this location and they continued to follow. When Appellant failed to
signal prior to making a right turn, Lopez notified the patrol officers of the traffic
2
violation. Reese pulled Appellant over at a convenience store parking lot. Green
pulled into the lot behind Reese. He stood near and slightly behind the
passenger door of Appellant’s car to observe Appellant while Reese checked him
out. Reese obtained Appellant’s driver’s license and proof of insurance and went
to his vehicle to check Appellant’s record.
Green saw Appellant open the center console, remove a plastic baggie
filled with a rock-like substance, and place it in the front of his pants. He
immediately made the Appellant get out of the car and retrieved the bag from
Appellant’s pants. Appellant was placed under arrest for possession of cocaine.
By the time Reese returned, Green had handcuffed Appellant. Green
showed him a plastic baggie that he had removed from Appellant’s pants which
appeared to contain cocaine.
Coleman received the baggie at the scene and subsequently placed it in
the police department’s property room. At trial he identified State’s Exhibit 2 as
the property control envelope which he had placed the ―drug items‖ in and then
sealed. After opening the envelope in the courtroom, Coleman identified its
contents as the cocaine that Green had given him at the traffic stop.
Sharon Patton, a forensic scientist, analyzed the drugs after receiving the
contents of State’s Exhibit 2 from the city property room on April 2, 2009. She
testified that the evidence consisted of two baggies, packaged as one baggie
within another baggie. After analyzing the substance, she concluded that it
contained 2.51 grams of cocaine, which would include adulterants and dilutants.
3
The evidence consisted of one larger rock in one baggie, and several tinier
pieces in the other baggie. The outer plastic baggie contained 1.37 grams, and
the inner baggie contained multiple pieces totaling 1.14 grams.
The defense called the CI,2 who had originally contacted the narcotic
officers, as a witness. The CI testified that he had lied to the officers when he
told them that Appellant was a drug dealer. He had thought that Appellant had
been abusing his daughter, but he later found out that it was someone else who
had been abusing his daughter. He realized that he had the wrong man about
three weeks to a month after he gave the information to the officers.
The CI also testified that he was in the vehicle with the narcotic officers
when they drove past the traffic stop, and he saw Appellant get out of his car and
start walking toward the store. At the same time, the CI saw a baggie which he
claimed was already on the ground near where Appellant was walking. The CI
did not tell the officers this at the time because he had wanted Appellant to go to
jail for what he had done to his daughter. The CI also claimed to have
overheard, on what he described as a ―walkie talkie,‖ the officers say that they
had not found any drugs in the car nor on Appellant.
In cross-examination, it was brought out that the CI had several felony
convictions. The CI admitted that he had been contacted by Appellant’s brother
2
Prior to testifying, the trial court appointed counsel for the CI, and in an in
camera hearing made sure that he understood his situation.
4
and that possibly he had run into Appellant. The CI denied that this had anything
to do with his testifying.
In rebuttal, the State called all of the officers back to testify. Both patrol
officers testified that the CI was not at the scene when Appellant was stopped
and arrested. They denied that Appellant had gotten out of the car before being
pulled out by Green.
Narcotics officer Coleman testified that he had met the CI for the first time
the day of the arrest and that Lopez was the CI’s main contact. They had picked
the CI up at his home, and he went with them to try to locate and identify
Appellant. They had finally located Appellant at the car wash. The officers had
taken the CI back to his home after he identified Appellant and then returned to
do the surveillance. The CI had told them that he knew Appellant well because
he had dealt drugs with him in the past. Coleman also explained that he never
takes the CI near an active investigation because doing so would compromise
the identity of the informant.
Narcotics officer Lopez testified that he had initially made contact with the
CI by phone. The CI had wanted to have Appellant arrested because he had
something to do with the CI’s daughter getting beaten up, causing her to take
refuge in a shelter. They had picked the CI up, and he had shown them the car
wash where Appellant sold crack cocaine. They had then taken the CI back to
his home. The CI was not at the scene of the surveillance nor the arrest because
they did not want to compromise him as an informant or let anyone know their
5
procedures. The CI had called him after the arrest and wanted their help. The
CI claimed Appellant had contacted him and wanted him to try to set up some
sort of a defense.
APPELLANT’S CONTENTION
Appellant contends that the evidence is neither factually nor legally
sufficient because: 1) reasonable doubt existed as to whether the substance
tested was the same substance recovered from the arrest; 2) possession was in
doubt because officer Reese’s testimony describing when he first saw the baggie
containing the cocaine was weak and inconsistent, and the CI testified that the
baggie was on the ground before the arrest; and 3) although the narcotics
officers denied that the CI was in the car during the surveillance, they never said
he was not in the car when Appellant was arrested.
APPLICABLE LAW
The Texas Court of Criminal Appeals has determined that there is no
meaningful distinction between the legal sufficiency standard and the factual
sufficiency standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App.
1996)). Thus, the Jackson standard is the ―only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a
reasonable doubt.‖ Id. at 895.
6
When evaluating the sufficiency of the evidence, all of the evidence should
be reviewed 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 to
have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
ANALYSIS
Applying the sufficiency standard of review set forth above in Jackson and
Clayton, we hold that a rational jury, based upon our review of the record in this
case in the light most favorable to the verdict, could have determined beyond a
reasonable doubt that the substance tested was cocaine in an amount as alleged
in the indictment and was in Appellant’s possession when he was arrested.
It is clear from the record that when the officers testified that they found a
bag, it was a bag within a bag, as the chemist testified. The jury could have also
determined that the CI’s testimony was not credible and the officers’ testimonies
were credible when they testified that the CI had been taken home before the
surveillance and was not present during the subsequent arrest. Therefore, the
jury could have concluded that it was impossible for the CI to have seen a baggie
already on the parking lot or to have seen Appellant walking toward the store
prior to his arrest. The jury, as the trier of fact, is the sole judge of the weight and
credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West
7
1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009).
Regarding Appellant’s claim concerning the chain of custody and whether
all the substance in State’s Exhibit 2 was crack cocaine, it is well established that
once the evidence is shown to have been received by the laboratory, any further
objection goes to the weight of the evidence, not to its admissibility. See
Menefee v. State, 928 S.W.2d 274, 280 (Tex. App.—Tyler 1996, no pet.). Here,
the jury could have reasonably believed, from the above testimony, that the
chemist retrieved the evidence from the property room where it had been
deposited by officer Coleman.
The State is not required to test each piece of suspected rock cocaine in
order to establish that it contained cocaine. See Melton v. State, 120 S.W.3d
339, 343–44 (Tex. Crim. App. 2003). Based upon the testimony of Sharon
Patton and the exhibits admitted at trial, the jury reasonable could have
concluded that the entire amount of the suspected substance was cocaine. We
overrule Appellant’s sole point. See id. The judgment of the trial court is
affirmed.
PER CURIAM
PANEL: CHARLES HOLCOMB (Senior Justice, Retired, Sitting by Assignment);
LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 7, 2011
8