Sears, Roy Lee v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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ROY LEE SEARS, ) No. 08-01-00011-CR

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Appellant, ) Appeal from

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v. ) Criminal District Court No. 2

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-9929407-I)

O P I N I O N

Roy Sears appeals his conviction for unlawful possession of methamphetamine with intent to deliver. Following a bench trial, the court assessed punishment in the institutional division of the Texas Department of Criminal Justice for twenty-five years. On appeal, Appellant contends that the evidence is legally and factually insufficient to support his conviction because he acted under a mistake of fact and was entrapped. We affirm.

FACTUAL SUMMARY

Kevin Cox, a police officer with the City of Grand Prairie, was on patrol on June 30, 1999. Observing from a car wash across the street, Officer Cox saw Appellant at a house on Dalworth Street, owned by Joe Duly, that had been identified as a narcotics offense location affiliated with amphetamine manufacturers, users, and sellers. Appellant took a blue plastic grocery bag from the trunk of his car and carried it to the passenger side of the car, opened the door, and put the bag in the car. Appellant then entered the driver=s side of the vehicle. Cox drove down the street in a westerly direction and back around in the opposite direction when he encountered Appellant=s vehicle in the right-hand lane signaling to turn north. Cox drove into the left-hand lane waiting to turn north. Appellant entered the intersection and turned north; Cox also entered the intersection and traveled north. Appellant began to travel between two northbound lanes and then drifted over the center lane into the southbound lane and oncoming traffic. Believing Appellant might be intoxicated, Cox decided to stop him for the traffic violation. After the officer activated his lights, Appellant continued to drive for approximately six blocks. He made a right turn and then a left turn before finally coming to a stop. Officer Cox believed that there were numerous places where Appellant could have pulled over. When asked for his driver=s license, Appellant had none. Appellant gave the officer his name and date of birth, and said he had just come from work and was heading home. Cox told Appellant that he had just seen him at a house on Dalworth Street. Afer a silent pause, Appellant became excited and blurted out repeatedly that he had something to show the officer. Cox called for assistance. Appellant then told him he had $300 in counterfeit money that he had just bought. Officer Cox admonished him to stop talking and he read Appellant his Miranda[1] warnings. Nevertheless, Appellant told Cox that he had just bought the money and made a deal with a guy named Charlie to buy some more of it. When asked why he was providing this information, Appellant replied that he was working as an informant for the Irving Police Department. Cox asked the name of his informant handler and Appellant could not produce a name. Cox arrested him for a traffic violation and then searched the vehicle. He opened the passenger-side door and discovered a blue bag. Inside the bag was drug paraphernalia, including baggies, syringes, and a set of digital scales. Cox also saw two baggies on the floorboard near the front passenger seat containing a powdery substance resembling methamphetamine. The officer did not believe that anyone from the Irving Police Department knew about the alleged counterfeit money transaction. The contraband was admitted as State=s Exhibit No. 23 and identified as methamphetamine with a total aggregate weight of 28.62 grams, including any adulterants or dilutants.

The Testimony of the Purported Informant Handler

Jimmy Myers, a financial crimes investigator with the Irving Police Department, testified that he had known Appellant since 1984. There were instances when Appellant had served as a confidential informant for the Irving Police Department and he had worked on narcotics cases in 1984 and 1985. When Appellant was in the penitentiary, he would contact Myers and Myers would pass on the information to the narcotics division.

Myers denied that Appellant came to him seeking a deal whereby Appellant would provide information concerning criminal activities in return for some favorable consideration regarding a February 24, 1999 arrest.[2] He did acknowledge that he had spoken with Appellant on the telephone. Appellant had already been arrested for the February offense; in fact, Myers estimated that five or six months elapsed between the time of the February arrest and his telephone conversation with Appellant. According to Myers, Appellant did not mention the February arrest in that conversation. He told Myers that he knew someone who was making counterfeit money. Myers replied that he did not handle counterfeit cases and that he normally referred those to the Secret Service. Myers told Appellant to Afind out what he could@ about the counterfeit money, but there was no deal to help Appellant on his February drug offense case. Myers did not tell Appellant to buy drugs or set up a meeting with anyone, although he did not set any limitations on Appellant=s actions, either. Myers testified that he was not supervising Appellant as a confidential informant at the time of the conversation.

Myers did not receive any more calls from Appellant, but he did meet with him personally sometime after Appellant=s arrest in June. According to Myers, Appellant was not working for the Irving Police Department regarding the counterfeit money at that time. Myers called the Secret Service, spoke with Marvin Wright, and told Wright that Appellant had some information regarding a counterfeiting operation. Myers introduced Appellant to Secret Service agent Victor Martinez the same day. According to Myers, there was no agreement between Appellant and the Secret Service agents regarding Aworking off@ his cases. Myers acknowledged that he was present at a surveillance operation set up by the Secret Service at a motel to obtain an incriminating statement from a counterfeiter, and that Appellant cooperated with that operation. But the meeting with the Secret Service agents did not occur until at least a week after Appellant=s arrest in Grand Prairie on June 30 and the surveillance operation did not occur until after the meeting with the Secret Service agents. Prior to that time, Appellant=s actions were purely his own.

 Appellant=s Version of Events

Appellant testified that he was a confidential informant for the Irving Police Department. He named Jimmy Myers as one of the individuals he dealt with in the department. Appellant claimed he worked on a murder case, an auto theft ring, and drug cases. Someone spoke to him about Aworking off@ his problems following his February arrest. He was told that when he and his wife were out on bond, they should go see Officer Hayen of the Irving Police Department. Appellant and his wife went to find Hayen but were told that Hayen was on vacation. They returned another day but were told Hayen did not want to talk to them.

After a period of time, Appellant found out about a counterfeit money operation. He obtained some of the counterfeit money and tried to contact the Irving Police Department. Appellant stopped a patrol officer and asked if Jimmy Myers were in his office. The officer told Appellant that Myers would be in the office on Monday. Appellant gave the officer the money and asked him to give it to Jimmy Myers and to tell him to call Appellant. Myers was not in the office on Monday but Appellant spoke with him on Tuesday. Myers told Appellant that if he could come up with a substantial amount of money, he could get things taken care of to help Appellant with his problems. Myers told Appellant, AIt=s a done deal. You go get this guy.@

Appellant acquired three counterfeit $100 bills from a counterfeiter in Plano. He negotiated with the counterfeiter so he could ensnare him. Appellant believed he was doing what the Irving Police Department had asked him to do. The counterfeiter asked Appellant to obtain an ounce of methamphetamine or speed in exchange for the counterfeit money. Appellant went to Joe Dewey=s[3] house in Grand Prairie and Dewey sold Appellant what he needed. Appellant told the counterfeiter that he had made the deal and to meet him at the car wash across the street from Joe Dewey=s house. Appellant and the counterfeiter then agreed to meet at Appellant=s house which was nearby. As Appellant approached his house, he saw a police officer parked on the corner of the street. The police officer followed behind Appellant and stopped him. Appellant told him what he had in his car and what he was doing. When Appellant arrived at the police station, he was approached by a supervisor named John Wright. Appellant told Wright about his association with Myers. Wright confirmed that he had spoken with Myers and that Myers had said that Appellant was working for him. On that day or the next, Appellant spoke in person with Marvin Wright of the Secret Service at his office in Las Colinas. Wright had asked Appellant and his wife to come and see him. Wright asked Appellant if he Acould still do it.@

After that meeting, Jimmy Myers called Appellant and asked him to go to the Irving Police Department and meet with him and someone named Victor Martinez of the Secret Service. Appellant continued to work with them. He was involved in a couple of surveillance operations at a motel and at his house under the direct supervision of Myers and the Secret Service to ensnare the counterfeiter, which eventually led to the counterfeiter=s arrest. Appellant believed he had fulfilled his part of the contract to make his February arrest Ago away@ by assisting with these operations. He was never given any limitations on what he could do.

On cross-examination, the State impeached Appellant about his prior convictions for possession of a controlled substance, illegal investment, and forgery. Appellant admitted that he was not told by anyone to buy drugs on the day he was arrested in June. He believed he was being set up when he met the counterfeiter at the same car wash where Officer Cox was waiting.

Appellant was charged by indictment for unlawful possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. Following a bench trial, the trial judge found Appellant guilty. Appellant was assessed punishment at imprisonment for twenty-five years. This appeal follows.

STANDARD OF REVIEW

In Points of Error Nos. One and Two, Appellant claims that the evidence was legally and factually insufficient to support his conviction because (1) he acted under a mistake of fact, (2) he was justified in purchasing the drugs as part of a police investigation, and (3) he was entrapped.

In determining the legal sufficiency of the evidence used to support a criminal conviction, appellate courts view 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, 573 (1979); Geesav. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). Appellate courts do not resolve conflicts of fact or assign credibility to witnesses, as it is the function of the trier of fact to accept or reject any, part, or all of any witness=s testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). An appellate court determines only if the explicit and implicit findings of the trier of fact are rational by viewing all the evidence in a light most favorable to the verdict. See Lucero, 915 S.W.2d at 614. Any inconsistencies in the evidence are resolved in favor of the verdict. Id. If the appellate court sustains a legal sufficiency challenge, it must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

In reviewing the factual sufficiency of the evidence to support a conviction, appellate courts view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1,7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 129. Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must consider whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, appellate courts are to give due deference to the fact finder=s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may Abelieve all, some, or none of the testimony.@ Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, a reviewing court may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER

To support a conviction for unlawful possession, the State must prove first, that the accused exercised care, control and management over the contraband, and second, that he knew the matter possessed to be contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988); Davila v. State, 930 S.W.2d 641, 644-45 (Tex.App.--El Paso 1996, pet. ref=d). AA person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.@ Tex.Pen.CodeAnn. ' 6.03(b)(Vernon 1994). An affirmative link must be established between the accused and the contraband demonstrating both that the accused had control over it and had knowledge of its existence and character. See Brown v. State, 911 S.W.2d 744 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso, 1995, pet. ref=d). The affirmative link must raise a reasonable inference that the accused knew of and controlled the contraband. Christian v. State, 686 S.W.2d 930, 932 (Tex.Crim.App. 1985); Levario v. State, 964 S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.). This affirmative link may be shown by either direct or circumstantial evidence, and Ait must establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Brown, 911 S.W.2d at 747. Mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance, but evidence which affirmatively links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex.Crim.App. 1985). It is significant whether the defendant had convenient access to the contraband, whether the police found the contraband in plain view or in areas private to the accused;[4] whether the defendant was the driver of the automobile in which the contraband was found and whether paraphernalia to use the contraband was in view of or found on the accused. Villegas, 871 S.W.2d at 897; Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.--Austin 1991, pet. ref=d). The number of factors present is less important than the logical force the factors have alone or in combination in establishing the elements of the offense. Whitworth, 808 S.W.2d at 569.

Appellant was the sole occupant of a the vehicle when he was stopped by Officer Cox. Appellant appeared nervous and excited. Two baggies with a powdery substance later identified as methamphetamine were discovered on the floorboard near the front passenger seat. On the passenger seat next to Appellant, Officer Cox also discovered drug paraphernalia, including baggies, syringes and a set of digital scales. The baggie of methamphetamine on the floorboard and the paraphernalia on the front seat were both in plain view of Appellant. He had convenient access to both areas. This evidence is both legally and factually sufficient to support a finding that Appellant had possession and control of the drugs found in the vehicle.

Mistake of Fact

Appellant maintains that he purchased and intended to deliver the drugs under a mistake of fact because he believed his purchase was justified as part of a police sting in a the counterfeit case. He argues that he was unaware that Myers did not consider him an informant and that, consequently, no rational trier of fact could have found that he purchased the drugs with the intent to deliver them to anyone other than the counterfeiter.

Section 8.02 of the Texas Penal Code provides, AIt is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.@ Tex.Pen.Code Ann. ' 8.02(a). The evidence before the trial court presented conflicting testimony regarding Appellant=s status as a confidential informant. Myers testified that although Appellant had served as an informant in the past, Myers did not have a deal with the Appellant to serve as a confidential informant in exchange for favorable treatment on his February arrest. Appellant contacted Myers about a counterfeit operation. Myers told Appellant to Afind out what he could,@ but did not authorize him to purchase drugs. Myers insisted that Appellant was not working as a confidential informant for him prior to his June 30 arrest. Moreover, Myers testified that the counterfeit sting operation in which Appellant cooperated was not in operation prior to Appellant=s June 30 arrest. Appellant admitted that he was not instructed by anyone to purchase drugs on the day he was arrested. Based on this evidence, the trial court could have found that Appellant was not reasonably acting under the assumption that he was working as an informant when he purchased the drugs found in his vehicle.

Entrapment

Appellant also argues that the evidence shows he was entrapped--but for the fact Myers told him to Afind out what he could,@ Appellant would not have purchased the drugs with the intent to deliver them to the counterfeiter. Entrapment is a defense to prosecution when a person engages in illegal conduct because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause the person to commit the offense. See Tex.Pen.Code Ann. ' 8.06(a). However, entrapment does not include A[c]onduct merely affording a person an opportunity to commit an offense.@ Id. The statute includes both a subjective and objective test for entrapment. England v. State, 887 S.W.2d 902, 913 (Tex.Crim.App. 1994). First, the accused must meet the subjective test that he was induced by law enforcement to engage in the illegal conduct. Id. Second, he must meet the objective test that the conduct that induced him to act would have induced an ordinarily law abiding person of average resistance. Id. In order to effectuate a claim of entrapment to a possessory offense, Appellant must show that he was persuaded or induced by law enforcement officers to take care, custody, control or management of the contraband. Richardson v. State, 622 S.W.2d 852, 855 (Tex.Crim.App. 1981). Entrapment does not exist if the evidence indicates that the criminal design originated in the mind of the defendant and that law enforcement merely furnished an opportunity for Appellant to commit the crime. Torres v. State, 980 S.W.2d 873, 875 (Tex.App.--San Antonio 1998, no pet.). Upon review, the entrapment defense centers on the legal sufficiency of the evidence. Id. at 875-76. The following exchange occurred during Appellant=s testimony:

Q.[State] Okay. So nobody knew you were gonna go to this house and buy dope?

A.[Appellant] No, ma=am.

Q. That was your own thing to do?

A. Yes, You=re right.

Q. But Jimmy Myers did not tell you to go to somebody=s house and buy dope?

A. No, he did not.

Q. And he just asked you to get information; is that correct? And you just proceeded on as you saw fit?

A. To see what I could develop.

Q. Okay. And it was up to you, then, to do whatever you thought you needed to do. I believe that was your testimony?

A. I thought so.

While he acknowledged that he did not set any limitations on Appellant=s actions, Myers testified that there was no agreement for Appellant to Awork off@ his February arrest. Myers told Appellant to Afind out what he could@ but he did not tell Appellant to buy drugs or set up meetings with anyone. The evidence presented to the trial court does not demonstrate that Appellant was induced by law enforcement to engage in illegal conduct. The plan to negotiate a deal with the counterfeiter and then exchange the counterfeit money for drugs was devised by Appellant himself. There is no evidence that the police instructed Appellant to carry out the plan. While Myers= comment that Appellant Afind out what he could@ may have influenced Appellant=s belief that he was acting within his authority when he obtained the drugs, we cannot say that his instruction in any way induced or persuaded Appellant to take care, custody, control, or management of the contraband. When examining the evidence in the light most favorable to the prosecution, we conclude that the trier of fact could have found against the Appellant on the issue of entrapment beyond a reasonable doubt.

We overrule Points of Error Nos. One and Two and affirm the judgment of the trial court.

July 25, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[2] J.R. Hayen, a police officer for the City of Irving, executed a narcotics search and arrest warrant at Appellant=s residence on February 24, 1999. When Officer Hayen arrived, Appellant and his wife were at home; Appellant came out of a bathroom with a tactical officer while his wife emerged from a back bedroom. After the house was searched, the Searses were placed under arrest for possession of methamphetamine. The laboratory results identified the contents of the baggies and the syringes found by the officers as methamphetamine with a total aggregate weight of 1.44 grams, including any adulterants or dilutants.

Defense counsel asked Officer Hayen if he were aware that Appellant and his wife talked to some Irving police officers the day of the February arrest about being confidential informants for the Irving Police Department. Hayen said he did not know of a conversation that day but he acknowledged that Appellant had been working as an informant for a police department before, although he was not sure to whom he was assigned.

[3] This Joe Dewey is likely the party referred to as AJoe Duly@ during Officer Cox=s testimony. The discrepancy may be a spelling error by the court reporter.

[4] See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.--Houston [1st Dist.] 1994, pet ref=d).