STANLEY J. ALEXANDER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 30, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-93-01953-CR
............................
STANLEY J. ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F93-64892-PI
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O P I N I O N
Before Justices Ovard, Hankinson, and Moseley
Opinion By Justice Hankinson
        After a trial before the court without a jury, Stanley J. Alexander appeals his conviction for delivery of cocaine. In two points of error, he challenges the sufficiency of the evidence supporting the trial court's judgment and his in-court identification. In one point of error, he challenges the trial court's decision to exclude certain evidence. We conclude appellant's points of error lack merit. We affirm the trial court's judgment.
 
 
BACKGROUND
        This case arises out of an undercover narcotics operation. On August 4, 1993, undercover Dallas police officers Ron Brown, Susan Harris, and Natali Peterson responded to a citizen complaint at 2803 South Boulevard in Dallas, Texas. When the police officers arrived at the apartment complex, Officer Brown approached a group of men standing in the parking lot. Officers Harris and Peterson stayed in the car.
        At trial, Officer Brown testified that when he got out of his car, he approached and asked appellant if he could "score a dime." Appellant told Officer Brown to "hold on a second," and Officer Brown watched appellant walk down the breezeway at the apartment complex, place what appeared to be crack cocaine in a purple baggie, and place that baggie on a refrigerator located in the breezeway. According to Officer Brown, appellant then returned and told Officer Brown to get his "stuff" and leave a ten dollar bill on top of the refrigerator. Officer Brown retrieved the substance, which appellant agrees was crack cocaine, and left ten dollars as appellant directed. Officer Harris testified that she saw and heard Officer Brown ask appellant for a dime rock of cocaine. However, she could not see the actual transfer of cocaine that occurred in the breezeway from her seat in the car.
        Officer Brown testified that the undercover officers then left the apartment complex, radioed a patrol element, and told the patrol officers to arrest a drug suspect at the apartment complex. Officer Brown gave the patrol element the suspect's description. According to this description, the suspect was a black male, approximately twenty-five years old, five-seven, and 160 pounds. The suspect was wearing a brown and white vertically-striped shirt on top of a white t-shirt, tan shorts, and black tennis shoes with fluorescent green on them. The suspect wore his hair in a pony tail.
        One of the patrol officers, Officer Givens, testified he went to the apartment complex and arrested appellant. According to Officer Givens, appellant matched Officer Brown's physical description and was wearing a loose-fitting tan and white vertically-striped shirt, a white t-shirt, and black shoes with neon green eyelets as Officer Brown described. Appellant also had a ponytail. Officer Givens testified that although three other people were present in the parking lot when he arrested appellant, none had a pony tail.
        Once the patrol officers arrested appellant, they notified Officer Brown and he returned to the apartment complex to identify appellant. Officer Brown testified that when he arrived at the apartment complex, he identified appellant as the man he saw place the crack cocaine on the refrigerator. At trial, Officer Brown testified, "the person [the patrol officers] had in custody, is . . . the same [appellant] that is on trial here today."
        Leonard Mitchell testified that he was present in the parking lot when the alleged transaction took place. Although he did not see the conversation begin, he noticed a man with a wave in his hair and a pony tail talking to another man in the parking lot. Mitchell stated that "the undercover officer that just testified in this court previously" was not involved in this conversation. Mitchell claimed that another man placed something on the refrigerator in the breezeway and then another black man walked through the breezeway, retrieved something from the top of the refrigerator, and put some money on the refrigerator. According to Mitchell, appellant was further down the breezeway when the transaction took place and did not participate in it. Mitchell has been "good friends" with appellant for ten or twelve years. When the patrol element arrived, Mitchell left and consequently he did not see appellant's arrest.
        Hazel Kennard testified that she was present both when the drug delivery occurred and when appellant was arrested. She stated that Officer Brown did not ask for a dime rock of cocaine, but instead asked "could you tell me where something is." Appellant reportedly responded he "didn't know what he [the officer] was talking about." According to Kennard, the officer returned to his car and then walked down the breezeway. According to Kennard, appellant was not further down the breezeway when Officer Brown retrieved the cocaine from the refrigerator as Mitchell testified. Rather, appellant was sitting on a car in the parking lot while the transaction took place. Kennard did not know who put the cocaine on the refrigerator, but stated that it was "probably" a man called "Spoon" who has a mustache and a pony tail. According to Kennard, Spoon was present that evening, wearing blue jeans and a white or tan shirt.
        Appellant testified that shortly after he arrived at the apartment complex, Officer Brown approached him and asked "Do you know where I can get some?" Appellant told him no and, referring to other men in the complex's parking lot, said "why don't you go ask them, you offended me, because I just got off work." Appellant then walked through the breezeway to ask his sister for some cigarette money. Officer Brown followed appellant into the breezeway, and appellant saw him retrieve the cocaine-filled baggie from the refrigerator and leave his money. Appellant denied placing the crack cocaine on the refrigerator and stated he observed Spoon placing the cocaine on the refrigerator.
        According to appellant, shortly after Officer Brown left the scene, other officers arrived and arrested appellant. Although those officers searched appellant, they did not find a ten dollar bill on his person. Appellant admitted that his attire when he was arrested matched the description given by Officer Brown, although he claimed that his shirt was cream and tan rather than white and brown and denied his black tennis shoes had fluorescent green eyelets. Appellant further claimed that when he was arrested, Spoon was standing next to him wearing jeans and a white t-shirt. Spoon also wore his hair in a pony tail.
        Appellant also called Curtis Alexander to testify. Alexander stated that he became acquainted with Officer Brown while Alexander worked with another officer in the Drug Task Force. Alexander testified that he had several conversations with Officer Brown. Appellant's counsel attempted to elicit testimony regarding one of the alleged conversations that Alexander had with Officer Brown. The State objected, arguing that the conversation was hearsay. The trial court sustained the objection. However, while arguing over this objection, appellant's counsel relayed to the court the substance of the conversation in question. Appellant's counsel specifically told the trial court that Alexander would have testified that Officer Brown told him the police were trying to "get [appellant's] brother, but if they couldn't get the brother, they were going to 'pin something'" on appellant. While the trial court did not formally admit this testimony, it indicated that the evidence "would be an element of my questioning the legitimacy of this."
        Later in the trial, appellant's counsel again alluded to an alleged police conspiracy against appellant in order to get to appellant's brother. Appellant testified that the police never interrogated him about the drug transaction for which he was arrested. Instead, two days after his arrest, the police interrogated him about other people in his neighborhood and referred specifically to appellant's brother as "the biggest one out there now."
        Appellant's counsel also asked Alexander if he had ever filed any grievances against police officers. The State objected and argued that the evidence was not relevant, especially if the grievances were filed against officers other than those involved in this case. The trial court agreed, and appellant's counsel asked Alexander no further questions.
DISCUSSION
Legal and Factual Sufficiency
        In his first point of error, appellant claims that the evidence is insufficient FN:1 to support a finding that he, as opposed to another individual, delivered cocaine FN:2 with the requisite mens rea. Appellant argues that he presented testimony establishing a reasonable, alternative hypothesis that the man identified as Spoon, rather than appellant, delivered the cocaine to Officer Brown. He claims that because the State did not negate this reasonable alternative hypothesis we must reverse. We disagree.
        We may not set aside a conviction for legal insufficiency simply because the State failed to negate a reasonable alternative hypothesis. The court of criminal appeals rejected the "reasonable alternative hypothesis" analytical construct in reviewing legal sufficiency challenges. Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991). Nor may we set aside a conviction for factual insufficiency simply because a different result might be more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Scott v. State, No. 05-94-01132-CR, slip. op. at 5 (Tex. App.--Dallas, Sept. 18, 1996, n.p.h.). If reasonable minds could differ about the conclusions to be drawn from the evidence, we may not reverse the judgment. See Clewis, 922 S.W.2d at 135; Orona v. State, 836 S.W.2d 319, 322 n.2 (Tex. App.--Austin 1992, no pet.).
        When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993), cert. denied, 114 S. Ct. 1871 (1994). This standard leaves to the fact finder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. Thus, the fact finder is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        When conducting a factual sufficiency review, we examine the fact finder's weighing of the evidence. Clewis, 922 S.W.2d at 133. We consider all the evidence, but we do not view it in the light most favorable to the verdict. Id. at 129. When performing our review, we must be "appropriately deferential" so as to avoid substituting our judgment for the fact finder's judgment. Id. at 133. We set aside the fact finding only if it is so contrary to the overwhelming evidence as to be clearly wrong and unjust. Id.
        Appellant was convicted of delivering a controlled substance. A person commits this offense if he (1) knowingly and intentionally, (2) delivers, (3) a controlled substance. Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2935, amended by Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3586, 3705 (current version at Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 1997)). The Texas Penal Code defines the mens rea requirement:
    (a)    A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
 
    (b)    A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Tex. Penal Code Ann. § 6.03(b) (Vernon 1994). Knowledge and intent can be inferred from the appellant's acts, words, and conduct. See Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). Case law interprets the delivery requirement. Appellant delivered cocaine if, as charged in the indictment, he actually or constructively transferred, or offered to sell, cocaine. Actual transfer of a controlled substance is defined as the complete transfer of real possession and control of the substance from one person to another. Wartel v. State, 830 S.W.2d 757, 760 (Tex. App.--Houston [1st Dist.] 1992, no pet.) (citing Conaway v. State, 738 S.W.2d 692, 695 (Tex. Crim. App. 1987)). Constructive transfer occurs when a controlled substance is transferred at the instance or direction of the defendant. Conaway, 738 S.W.2d at 694.
        The State presented evidence showing that appellant himself delivered cocaine with the requisite mens rea. Officer Brown unequivocally testified that after he asked appellant where he could "score a dime," he saw appellant walk down the breezeway, place the cocaine in a purple baggie, and place the purple baggie on top of the refrigerator. According to Officer Brown, appellant then directed him to retrieve the cocaine and leave money in its place. Officer Harris testified that although she did not see the transfer, she heard Officer Brown ask appellant where he could score a dime. Once he completed the transaction, Officer Brown left the scene and radioed a description to Officer Givens who then arrested appellant. Appellant admits his attire matched that described by Officer Brown. Officer Givens testified that when he arrived at the apartment complex and arrested appellant, no one else at the apartment complex matched the description given by Officer Brown. Officer Brown testified that he identified appellant again once Officer Givens had him in custody.
        We have reviewed the entire record under the legal sufficiency standard of review and conclude, based on this evidence, that a rational trier of fact could have concluded beyond a reasonable doubt that appellant intentionally or knowingly delivered cocaine to Officer Brown. We have also examined the entire record under the factual sufficiency standard of review. We cannot conclude the evidence produced by the State to show that appellant intentionally or knowingly delivered cocaine to Officer Brown is so uncertain, inconsistent, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott, No. 05-94-01132, slip. op. at 3-4. Nor can we conclude the trial court's findings on the elements of delivery of a controlled substance are against the great weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129; Scott, No. 05-94-01132, slip. op. at 4. Because the judgment is supported by factually sufficient evidence, we need not detail further the evidence relevant to any issue. Scott, No. 05-94-01132, slip. op. at 5-6. We overrule appellant's first point of error.
        Appellant's third point of error relates to his first. He claims that because insufficient evidence establishes that he, as opposed to another individual, placed the cocaine-filled baggie on the refrigerator, Officer Brown's in-court identification is not sufficient to support the judgment. We have previously concluded that the evidence supports the finding that appellant placed the baggie on the refrigerator. We now conclude that, in light of this finding, Officer Brown sufficiently identified appellant in court because, based on the totality of the circumstances, the trial court was adequately apprised that the witnesses referred to appellant. See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981).
        There can be no doubt that the trial court knew exactly to whom Officer Brown referred when he identified appellant in court. Officer Brown stated that the man arrested for the transaction in question was the same man he saw place the cocaine-filled baggie on the refrigerator. He then testified that the man arrested was the man on trial. Appellant was the only defendant on trial in this case. He was named in the indictment and in the final judgment. Under the facts of this case, the lack of a more formal in-court identification procedure did not render the evidence insufficient to establish appellant's identity as the alleged criminal perpetrator. See Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.--Beaumont 1983, pet. ref'd). We overrule appellant's third point of error.
Evidentiary Error
        In his second point of error, appellant argues that the trial court erroneously failed to deny the City of Dallas's motion to quash a subpoena issued at appellant's request, and erroneously excluded (1) testimony regarding a police conspiracy against appellant and (2) grievances filed against police officers by Curtis Alexander, one of the trial witnesses. We review this point of error to determine whether the trial court abused its discretion. See Huff v. State, 897 S.W.2d 829, 838 (Tex. App.--Dallas 1995, pet. ref'd).
        Appellant first complains that the trial court erroneously failed to deny a motion to quash filed by the City of Dallas. Appellant had a subpoena issued requesting that the Dallas Police Department's Internal Affairs Division records custodian appear and produce records relating to grievances filed against four different officers. The City of Dallas, the Dallas Police Department, and Bennie R. Click, Dallas's Chief of Police, filed a motion to quash or, alternatively, modify the subpoena. The custodian of records did not appear or produce any documents. Appellant now claims that the trial court should have denied the City of Dallas's motion to quash. However, after searching the record, we find no trial court ruling on the motion to quash. Because the trial court never ruled on this motion, no error is preserved. See Dunavin v. State, 611 S.W.2d 91, 97 (Tex. Crim. App. 1981); Cates v. State, 752 S.W.2d 175, 177 (Tex. App.--Dallas 1988, no pet.)
        Appellant next complains that the trial court erroneously excluded evidence of a police conspiracy against him. The following exchange took place when Curtis Alexander testified regarding his "work" with a Dallas police officer who was not involved in this case:
 
    Q:        Okay, has he ever made any comments to you specifically about Stanley Alexander?
 
    [PROSECUTOR]: Your Honor, I'll have to object as hearsay.
 
    THE COURT: Sustained. What is the relevancy ma'am?
 
    [DEFENSE COUNSEL]: Your Honor, what I'm trying to get to is a conversation that took place specifically regarding, they were going to get his brother, Mr. Alexander is his brother, if they couldn't get him, the specific conversation that took place between the two and regarding the offense, statements were made regarding that they were going to pin something on him because they wasn't [sic] able to get his brother.
 
    THE COURT: Okay, so this officer, this officer ..
 
    THE WITNESS: No, not this officer ..
 
    THE COURT: ..is going to conspire with this officer because this guy doesn't like him?
 
        [DEFENSE COUNSEL]: No ..
 
        THE WITNESS: No, not this officer, Officer R.S. Reese.
 
        [DEFENSE COUNSEL]: No, Your Honor ..
 
    THE WITNESS: He wasn't the one with me, he never said nothing to me about what he was going to do to me.
 
    [DEFENSE COUNSEL]: Your Honor, what I'm trying to get to is that the Officer made a specific statement ..
 
    THE COURT: Well, ma'am, he is talking about somebody that is not here ..
 
    THE WITNESS: That I worked with.
 
    THE COURT: How are we going to attribute something to somebody that said that that is not here?
 
    [DEFENSE COUNSEL]: Although that statement was made by the other officer that's not present, he also had a conversation with one of these officers, regarding his drugs, his alleged drug selling, that they were going to get his brother if they couldn't get to him..
 
    THE COURT: That is what I'm saying. I guess the point is that you conspired..well, all four of these people conspired against this man.
 
    [DEFENSE COUNSEL]: Yes, Your Honor, that's the testimony we're leading up to, everyone was working against him.
 
    THE COURT: Okay. It is in there now, I heard it, and it is an element of my questioning the legitimacy of this.
 
        [DEFENSE COUNSEL]: Okay.
        Assuming, without deciding, that the trial court erred when it sustained the State's objection, we conclude that any error was harmless and does not warrant reversal. As shown in this excerpt, the trial court allowed appellant's counsel and Alexander, the witness, to explain this conspiracy theory. The trial court then stated that evidence regarding the alleged conspiracy "is in there now, I heard it, and it is an element of my questioning the legitimacy of this." Because the fact finder considered the conspiracy evidence, we conclude appellant could not have been harmed by any alleged exclusion of evidence, if it occurred. Tex. R. App. P. 81(b)(2); Huff, 897 S.W.2d at 838; Blalock v. State, 728 S.W.2d 135, 137 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd).
        Appellant finally contends that the trial court erroneously excluded Curtis Alexander's testimony regarding grievances that he filed against Dallas police officers. The following exchange occurred at trial:
    Q: Have you ever filed any complaints or grievances against the officers?
        A: I filed ..
        [PROSECUTOR]: I would object, what officer are you talking about?
        [DEFENSE COUNSEL]: I'm sorry, Your Honor.
    THE COURT: You know, all the rest is totally immaterial, you made your point as far as I'm concerned, if there is some relevance to it ..
 
    [DEFENSE COUNSEL]: Okay.
 
    THE COURT: ..because what he did with some other officers is not material here, ma'am.
 
    [DEFENSE COUNSEL]: Yes, Your Honor, that's all the testimony I wanted to get from him; no further questions.
        Appellant failed to preserve any error that arose when the trial court excluded Alexander's testimony. An appellate court can only consider a complaint concerning the exclusion of evidence if the record shows the substance of the excluded testimony. Tex. R. Crim. Evid. 103(a)(2). Absent such a showing, nothing is presented for review. Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984) (en banc), cert. denied, 474 U.S. 866 (1985); Reid v. State, 749 S.W.2d 903, 911 (Tex. App.--Dallas 1988, pet. ref'd). The record before us contains no evidence relating the substance of Curtis Alexander's excluded testimony. We are therefore unable to review the merits of appellant's claimed error.
        Appellant claims, however, that the usual waiver rules do not apply because the trial court committed fundamental error. See Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(d). He claims that Skelton v. State, 655 S.W.2d 302 (Tex. App.--Tyler 1983, pet. ref'd), supports his claim that exclusion of Alexander's testimony is fundamental error because the testimony was exculpatory, showed the officers' bias, and tended to explain why the police officers allegedly conspired against appellant. We disagree.
        In Skelton, the appellant was convicted of sexual abuse of a child. At trial, the defense presented witnesses who testified that the appellant had either a good or very good reputation in the community for being a peaceable and law-abiding citizen. However, on cross-examination, each witness testified that he had not heard appellant's character trait discussed in the community. The trial court then struck the witnesses' direct testimony regarding appellant's reputation and told the jury to disregard it. The appellate court found the trial court committed fundamental error because in a sexual abuse case the appellant had the right to introduce evidence of his good character as a peaceable and law-abiding person at the guilt/innocence stage of the trial to show that it was improbable that he committed the charged offense. Id. at 304. Therefore, the character trait the defense sought to introduce was pertinent to the offense charged. See In re G.M.P., 909 S.W.2d 198, 207 (Tex. App.--Houston [14th Dist.] 1995, no pet.) (citing Skelton). In this case, however, appellant does not claim that the excluded testimony relates directly to the charged offense, but rather to the bias officers might have against appellant. Many courts have applied the waiver rules to evidence of bias. See, e.g., Navarro v. State, 863 S.W.2d 191, 198 (Tex. App.--Austin 1993), pet. ref'd, 891 S.W.2d 648 (Tex. Crim. App. 1994). Therefore, we conclude that the trial court did not commit fundamental error and the normal waiver rules apply. We overrule appellant's second point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DEBORAH G. HANKINSON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
931953F.U05
 
FN:1          In his brief, appellant argues only that "insufficient" evidence supports the trial court's judgment. At oral argument, appellant argued that his brief specifically raised both legal and factual sufficiency challenges to the evidence. The State challenged this assertion, arguing that appellant only raised a legal sufficiency challenge to the evidence. We need not decide this issue because, after reviewing the record in this case, we determine that both legally and factually sufficient evidence supports the trial court's judgment.
FN:2          Appellant actually complains that insufficient evidence shows he "transported" cocaine. The indictment charged, and the trial court found, that appellant delivered cocaine. We therefore review the evidence to determine if sufficient evidence of delivery, rather than transporting, exists.
File Date[12-30-96]
File Name[931953F]