Joe Perez, Jr. v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Joe Perez, Jr.

Appellant

Vs. No. 11-02-00120-CR -- Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted Joe Perez, Jr. of the offense of possession Awith intent to deliver@ methamphetamine and assessed his punishment at confinement for 60 years and a fine of $1,000. We affirm.

Issue Presented

Appellant presents a single issue for appellate review. He argues that there was insufficient evidence to prove that he possessed the controlled substance Awith intent to deliver.@

Circumstantial Evidence of Intent to Deliver

The trial court had a discussion outside the hearing of the jury in connection with appellant=s motion in limine. That motion sought to exclude testimony during the first phase of trial about two other sales of methamphetamine by appellant. This case involves the offense of possessing Awith intent to deliver@ methamphetamine on September 18, 2001. One of the prosecutors told the trial court that the State would seek to put into evidence proof of constructive deliveries by appellant of methamphetamine on June 29, 2000, and January 1, 2001. The State=s position was that proof of those two deliveries was Arelevant to issues other than character,@ citing a case[1] which noted that Aevidence of prior drug dealings is highly probative with intent to the distribution of the controlled substance.@

Appellant=s attorney responded that the State would have professional opinion proof by the police officers that the amount of drugs possessed by appellant showed that he possessed the methamphetamine Awith the intent to deliver.@ Appellant=s attorney then argued that the extraneous offenses were cumulative and that the probative value of this evidence would be Adiminished because that evidence is already in front of the jury.@

The trial court then told the attorneys that it was going to defer its ruling until it heard some of the State=s evidence and Athen make the balancing test.@ The court told the State not to mention those two extraneous matters in the presence of the jury until it made its ruling.

The State=s first witness was Deputy Sheriff Tommy Martin who had been assigned to the Cross Timbers Narcotics Task Force. Deputy Martin testified that he was present when appellant was arrested on September 18 at appellant=s residence in Mineral Wells. Deputy Martin was the one who did a Apat down@ search of appellant and found the contraband in appellant=s pocket. Deputy Martin said that appellant had a small, clear plastic bag which contained Aan off-white rocky, crumbly substance.@ Deputy Martin proved up his end of the chain of custody on the contraband. He also identified appellant as the man who was arrested. Deputy Martin also identified a photograph which he took at appellant=s residence showing the Asurveillance camera@ which was mounted at the peak of the roof.

The State=s second witness was Sarah Boetz who is employed by the Task Force to take in the evidence and keep it safe and secure until needed for court or destruction.

The State=s third witness was Michelle O=Neal who is employed as a chemist by the Tarrant County Medical Examiner=s Office. She proved up her end of the chain of custody and testified that the substance taken from appellant was 11.51 grams of methamphetamine.

The State=s fourth witness was Rodney Price, a Mineral Wells police officer who was assigned to the Cross Timbers Narcotics Task Force as a field supervisor. He testified as an expert witness and said that a Aquarter gram@ of methamphetamine would be the amount used in a day by the normal user and that the normal user would purchase Ahalf a gram or less.@ Officer Price also expressed the opinion that the purpose of someone Ahaving in their possession 11 grams or 11 and a half grams of methamphetamine@ would be for distribution, dealing, or resale. Officer Price also explained to the jury that a person can illegally deliver narcotics even if it is not done for profit, such as when boyfriends, girlfriends, husbands, wives, or buddies give narcotics to each other. Officer Price also testified about the surveillance camera which was mounted on the roof at appellant=s residence and which was hooked up to a monitor in the master bedroom. Officer Price also said that people who possess drugs for the purpose of selling the drugs use those cameras and monitors to see who is coming to and from the house. That gives them an early warning so that they can get rid of the drugs. Officer Price said that the drug addict does not use the cameras and monitors. During cross-examination, Officer Price agreed that the officers did not find any large amounts of cash on appellant or in his residence and that they did not find any scales or plastic bags.

At this time, the trial court asked the jury to step outside the courtroom, and the reporter=s record shows the trial court=s ruling on appellant=s motion in limine. Relevant portions read as shown:

THE COURT: During the presentation of the State=s case, the Court has been continuing to analyze and make the balancing test that is required before making a ruling on the extraneous conduct. The State has reached the part in their case where they would present those matters that were referenced earlier in this hearing.

And the Court is going to find that although those - - the conduct that the State has indicated is relevant to the issue that is before the jury, that in view of other evidence that is in the record, specifically, the quantity of alleged controlled substances, the opinion testimony of the officer or officers, as well as the surveillance camera and other conclusions or implications that that might have, that the State has other evidence that is, at least, probative and arguable to present to the jury on the issue of the intent to distribute or deliver. And so I=ll not allow the State to introduce the 404 (b) subject matter to make an effort to further prove the intent of the defendant.

I=ll just find that the - - although it has high probative value, that the prejudicial effect to the defendant would outweigh that in the balance of the status of this record.

When the jury returned to the courtroom, both sides rested and closed.

This Court=s Ruling

The issue presented for appellate review is overruled. We agree with the trial court that the State did not need the extraneous offense testimony because the other evidence was sufficient to support the jury=s finding that appellant had the Aintent to deliver@ the cocaine which he possessed. The evidence is Alegally@ sufficient under the test stated in Jackson v. Virginia, 443 U.S. 307 (1979). The evidence is Afactually@ sufficient under the tests stated in Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997), and Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury=s finding that appellant was guilty of possessing the controlled substance Awith intent to deliver@ is not so contrary to the weight of the evidence as to be Aclearly wrong and unjust.@ Cain v. State, supra at 407; Clewis v. State, supra at 129.

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

November 21, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and Dickenson, S.J.[2]

[1]See United States v. Maxwell, 34 F.3d 1006 (11th Cir. 1994); see also United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. den=d, 440 U.S. 920 (1979).

[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.