Calvin Emmanuel Lee v. State of Texas--Appeal from 350th District Court of Taylor County

Opinion filed March 20, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00286-CR

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 CALVIN EMMANUEL LEE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 7360-D

M E M O R A N D U M O P I N I O N

The jury convicted Calvin Emmanuel Lee of delivery of cocaine. The trial court assessed his punishment at confinement for twelve years. We affirm.

Issues on Appeal

In four issues, appellant challenges the sufficiency of the evidence to support his conviction. In his first issue, appellant argues that the evidence is both legally and factually insufficient to support the jury=s finding that he intentionally and knowingly actually transferred the cocaine. In his second issue, appellant contends that the evidence was insufficient to prove actual transfer. In the third issue, appellant argues that the trial court erred in failing to grant his motion for an instructed verdict. This is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Finally, appellant argues that the trial court erred in refusing to grant his motion for new trial on the grounds that the verdict was contrary to the law and the evidence and that the evidence was insufficient to support the conviction. We will consider these issues together.

Standards of Review

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

We review the factfinder=s weighing of the evidence and cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the factfinder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 10-11; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the factfinder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

The trial court=s denial of a motion for new trial will not be disturbed on appeal unless, after being reviewed in the light most favorable to the trial court=s ruling, the record reflects that the trial court abused its discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

The Indictment and the Charge to the Jury

The indictment alleged that on September 14, 2004, appellant Adid then and there knowingly deliver by actual transfer to James Rhodes, a controlled substance, to-wit: COCAINE, in an amount by aggregate weight, of four (4) grams or more but less than two hundred (200) grams.@ The charge to the jury included instructions on the law of parties pursuant to Tex. Penal Code Ann. '' 7.01, 7.02 (Vernon 2003).

Evidence at Trial

Texas Department of Public Safety Sergeant James C. Rhodes testified that he was conducting an undercover narcotics investigation involving Eric Gomez. At the time of the present offense, Sergeant Rhodes=s plan was Ato go to the next level with the individual@ that was supplying cocaine to Gomez. Sergeant Rhodes called Gomez to set up the purchase of an ounce of cocaine. Gomez was receptive and wanted Sergeant Rhodes to meet with him at his residence. Sergeant Rhodes refused and arranged to meet Gomez in the parking lot of the Buffalo Wild Wings Restaurant. Gomez agreed to sell Sergeant Rhodes an ounce of cocaine for $800. Sergeant Rhodes arranged for surveillance of the parking lot.

At a little after 7:00 p.m., Sergeant Rhodes met Gomez in the parking lot. Gomez had another person in his vehicle with him. At the time of trial, Sergeant Rhodes still did not know the identity of the other person in Gomez=s vehicle. Gomez told Sergeant Rhodes that he wanted the money up front and that he would then go get the cocaine from Ahis guy.@ Sergeant Rhodes, wanting to meet Gomez=s source, told Gomez, A[W]e=re not going to do it that way.@ Sergeant Rhodes handed Gomez his cell phone, and Gomez made a call. Because he did not want to seem Aovereager,@ Sergeant Rhodes told Gomez that he would leave for ten minutes and then he would return.

Sergeant Rhodes returned to the parking lot at 7:32 p.m. Gomez made it clear to Sergeant Rhodes that he did not have the cocaine at that time and that he was the Ago-between.@ Sergeant Rhodes suspected that Gomez=s source was inside the restaurant and told Gomez that he would go with Gomez into the restaurant. Gomez was not Areally willing@ to do the deal that way but realized that that was the only way Sergeant Rhodes would complete the transaction. Gomez led Sergeant Rhodes to believe that they would go into the restroom and that Gomez would contact his source there.

Sergeant Rhodes entered the restroom first. Then, Gomez and appellant entered together. Sergeant Rhodes reached into his pocket to pull out his money. Appellant Aimmediately backed off@ and began talking to Gomez. Sergeant Rhodes threw his hands up and said, AYou know what, forget it. I don=t need it. I=m going to leave.@ Sergeant Rhodes went out to his vehicle with Gomez following him. Gomez got into the vehicle and said, AHey, you know, you scared him. You know, he doesn=t trust you.@ Sergeant Rhodes told Gomez that he was going to leave. Gomez responded by telling Sergeant Rhodes that Ahe=s got it on him right now@ but that Ahe@ did not have a full ounce. Gomez negotiated a price of $400 for the half ounce that Ahe@ had plus $50 for Gomez for setting up the deal.

Sergeant Rhodes and Gomez again approached the restaurant. When they entered the restaurant, Sergeant Rhodes gave Gomez $400 and kept the extra $50 in his pocket. Sergeant Rhodes saw appellant sitting with a woman at a small table along the wall. Sergeant Rhodes asked Gomez, AIs he at a table?@ Gomez responded, AYes, he=s at a table. He=s got it on him.@ Sergeant Rhodes told Gomez that he was not going to leave Gomez=s side and that he was Agoing to watch it.@ Gomez said A[t]hat=s fine@ and went over to appellant=s table. Gomez went straight to appellant=s table and did not stop along the way. Appellant and Gomez huddled together. Sergeant Rhodes saw Gomez=s cupped hand (the same hand that Sergeant Rhodes had seen his money in) go underneath the table. Gomez then turned and walked straight back to Sergeant Rhodes, nodding his head Alike it=s good.@

The two men left the restaurant together and Awalked directly@ to Sergeant Rhodes=s vehicle. Inside the vehicle, Gomez gave Sergeant Rhodes two packages of cocaine that Gomez had had in his hand. Sergeant Rhodes pulled out a small set of scales, and Gomez weighed the cocaine at sixteen ounces. Sergeant Rhodes gave Gomez the remaining $50, and Gomez told him that the Anext time@ would be easier because Ahis guy@ had seen him. Gomez asked Sergeant Rhodes to break off a piece of the cocaine and give it to him. Sergeant Rhodes refused.

In following up on his investigation, Sergeant Rhodes checked his cell phone and secured the phone number that Gomez had called. Sergeant Rhodes determined that the phone number was appellant=s. Sergeant Rhodes further testified that, although he did not see Gomez=s hand meet appellant=s hand, he saw their torsos meet and that he felt confident that an exchange took place.

On cross-examination, Sergeant Rhodes testified that he did not hear what Gomez and appellant discussed in the restroom. Sergeant Rhodes also stated that there were other people in the restaurant but that they did not block his view. He saw Gomez=s hand with the money go under the table, but he did not see actually the money leave Gomez=s hand.

The substance Gomez gave Sergeant Rhodes was tested. It was identified as cocaine. Without the packaging, the substance weighed 13.85 grams.

Application of Law to the Facts

After reviewing the evidence in the light most favorable to the verdict, we find that a reasonable factfinder could have found appellant guilty under the court=s charge that contained instructions on the law of parties. Therefore, the evidence is legally sufficient to support the conviction. Likewise, after reviewing all of the evidence in a neutral light, we do not find that the evidence supporting the conviction is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the conflicting evidence. Therefore, the evidence is also factually sufficient to support the conviction. The record before this court supports the trial court=s denial of the motion for new trial and reflects no abuse of discretion. All of appellant=s issues are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 20, 2008

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.