McClenon, Malcolm Omar v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MALCOLM OMAR McCLENON, )

) No. 08-01-00031-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court #5

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0002295-L)

)

O P I N I O N

The Appellant Malcolm Omar McClenon appeals a jury conviction for possession of cocaine with intent to deliver. His punishment was assessed at 11 years= imprisonment. We affirm.

On the evening of December 2, 1999, the Appellant was a passenger in a Cadillac sedan that stopped near a vacant lot in the 3000 block of Alabama Street in Dallas, Texas. A group of men were standing in the lot, which was notorious for drug dealing. The driver, later identified as William Jackson, got out of a tan Cadillac and walked to the adjacent house. As Jackson walked past the men, he joked with them by pulling out a pistol and pointing it at them. Everyone laughed. This was observed by a uniformed Dallas police officer, Frederick Frazier, who had been surreptitiously surveilling the lot from the rooftop of a church building adjacent to the lot.

Jackson entered the house and stayed only a few minutes before returning to the car. The Appellant had been seen getting out of the Cadillac=s rear passenger seat and standing by the front passenger door. Both men got back in the car and drove off. Officer Frazier radioed his partner, Officer Kurt Hibbets, who was waiting in a parked patrol car a block away, that the driver of the Cadillac had a weapon. Officer Hibbets saw the Cadillac, followed it, and when the Cadillac ran a stop sign, he pulled it over. Another patrol officer, Anthony Smith, arrived at that same moment to provide backup.

As the officers approached the car, they smelled the odor of marijuana. They asked Jackson and the Appellant to step outside the car. Officer Smith discovered that the Appellant had a pistol in his jacket. The subsequent search of the Appellant revealed a plastic ziplock bag that had two smaller bags of crack cocaine and a loose rock of crack cocaine and an empty cigarette pack with seventeen small bags of crack cocaine. Jackson and the woman passenger were released.

Moments later, Officer Frazier radioed that he believed that a drug deal was about to occur and asked Officers Smith and Hibbets to converge on the Alabama Street lot. After Hibbets and Smith arrived, Officer Frazier realized and told the other officers that he had not seen Appellant with the pistol but rather the driver and described Jackson.

Officers Hibbets and Frazier and the Appellant in custody left the area to book the Appellant. Officer Smith left but a short distance away, he spotted the Cadillac. Jackson was driving with the same woman in the front passenger seat and another man in the rear passenger seat. Officer Smith stopped the Cadillac again and arrested Jackson for driving with a suspended driver=s license. During the inventory search of the car, $1,200 was found in a purple Crown Royal bag in the glove compartment. There were three $50 bills, twenty-nine $20 bills, twenty $10 bills, forty-six $5 bills, and forty $1 bills.

On appeal, three issues are raised: (1) that there was legally insufficient evidence to establish the element of intent to deliver cocaine; (2) that there was factually insufficient evidence to establish the element of intent to deliver cocaine; and (3) that there was insufficient evidence to support an affirmative finding that a deadly weapon was used or exhibited.

Intent to Deliver

The indictment alleged that the Appellant possessed with intent to deliver an amount of cocaine. The trial court instructed the jury that they could find the Appellant guilty of the lesser included offense of simple possession. The jury did not do so. The essence of the argument before us then is that the evidence is legally and factually insufficient to prove intent to deliver the cocaine because the suspected money was not found in the Appellant=s possession.

In reviewing the legal sufficiency of the evidence, this Court examines all of the evidence in a light most favorable to the verdict, both admissible and inadmissible, in order to determine whether any rational trier of fact could find the essential elements of the crime as alleged beyond a reasonable doubt. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Lyon v. State, 885 S.W.2d 506, 516 (Tex.App.--El Paso 1994, pet. ref=d). Our duty is not to reexamine the evidence and impose our own judgment as to whether the evidence establishes guilt beyond a reasonable doubt, but only to determine if the findings by the trier of fact are rational. Lyon, 885 S.W.2d at 516-17. Any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). This standard of review applies equally to both direct and circumstantial evidence cases. Garcia v. State, 871 S.W.2d 279, 280 (Tex.App.--El Paso 1994, no pet.).

In reviewing factual sufficiency, this Court views all evidence without the prism of Ain the light most favorable to the prosecution@ and sets aside the verdict only 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, 133 (Tex.Crim.App. 1996). We defer to the fact finder=s determinations in reviewing the weight given to the evidence. Id. An appellate court cannot substitute its judgment for that of the fact finder=s and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).

In determining the legal sufficiency of the evidence and viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Officer Hibbets testified that it was a common tactic for one drug dealer to hold the drugs while his associate held the money. Officer Frazier testified that a drug user who was going to buy $100=s worth of crack cocaine would more than likely buy a Aslab@ to avoid getting Aripped off.@ Officer Ragsdale, who testified as an expert of illicit drug transactions, testified that distribution of the crack cocaine especially the seventeen dime bags was consistent with an intention to distribute and that an ordinary user or addict would not buy seventeen dime bags but rather a $100 Acookie.@ There was testimony that Jackson claimed the money came from the sale of a car; however, the jury could reasonably conclude that the denominations of the money which were all smaller denominations and akin to the common street transactions of Anickel,@ Adime,@ Aquarter,@ and Afifty@ bags was consistent with illicit drug transactions. Issue One is overruled.

In determining the factual sufficiency of the evidence and considering all of the evidence without viewing it in the light most favorable to the verdict, we find the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Officer Frazier saw the Appellant with Jackson. Appellant got out of the car and waited by the car while Jackson went into a house next door to the vacant lot. Officer Frazier saw Jackson brandishing the gun as he walked into the house. Moments later, after Jackson and Appellant had gotten back into the car and driven off, it was stopped. No gun was found on Jackson, but a pistol is found in the pocket of Appellant=s jacket. Appellant was in possession of a substantial amount of crack cocaine and the majority in Adime@ bags. The jury=s verdict is simply not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Issue Two is overruled.

In Issue Three, the Appellant=s argument relies on the proposition in Issues One and Two that the cocaine was for his own use and, therefore, possession of a weapon does not facilitate possession of his own cocaine. Since we have upheld the jury=s verdict that he possessed the cocaine with the intent to distribute, Appellant=s argument collapses. See Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App. 1989). Issue Three is overruled.

February 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)