EMMETT DEWAYNE DURLEY, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion issued November 6, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00422-CR
............................
EMMETT DEWAYNE DURLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-01747-VT
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OPINION
Before Justices Morris, Whittington, and Richter
Opinion By Justice Morris
        A jury found appellant Emmett Dewayne Durley guilty of unlawful possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. Appellant presents four issues for our review. He complains about the trial court's rulings on his Batson   See Footnote 1  objections and motion to suppress. He also challenges the legal and factual sufficiency of the evidence to support his conviction. For the reasons that follow, we affirm the trial court's judgment.
        While on patrol in a high drug-trafficking area of south Dallas, police officers Jaime Castro and Derek Allen saw appellant with his hand at the zipper of his pants. According to Castro, appellant walked toward the yard of a vacant house and stood by a tree. Both officers suspected appellant was going to urinate in public in violation of a city ordinance. The officers pulled their vehicle next to appellant and attempted to speak to him. Appellant took his hand from his zipper and walked away from the squad car. Appellant was ultimately detained after he ignored the officers' requests to stop. The officers ran appellant's name through the computer in their squad car and discovered an active warrant. They arrested appellant and searched him. The officers found 41 plastic baggies containing crack cocaine inside a paper bag in the hood of appellant's sweatshirt. They also found a night vision scope and $294.
        In his first issue, appellant contends that the trial court erred in overruling his Batson challenge to the State's strikes of four African-American venire members, specifically potential jurors 6, 19, 26, 32.   See Footnote 2  Appellant points out that half of the State's peremptory strikes were used against ethnic minorities leaving appellant, an African-American, with a jury consisting of only one African-American.
        The following three-step process applies to a Batson challenge: (1) the defendant must make a prima facie showing the prosecutor exercised peremptory strikes on the basis of race, (2) the burden then shifts to the prosecutor to state a race-neutral reason for the strikes, and (3) the ultimate burden lies with the defendant to rebut the prosecutor's explanations or establish his explanations are merely a pretext for discrimination. Hernandez v. New York, 500 U.S. 352, 358 (1991). When reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. See Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999 pet. ref'd).         After appellant made his Batson objections, the prosecutor proffered the following race- neutral explanations for the strikes: juror 6 was a legal secretary and nodded in agreement with the defense attorney's theory that police sometimes add drugs to those found on a defendant to increase the degree of the offense; juror 19 was also a legal secretary and had previously testified in court; juror 26 was a chief administrative judge who had previously testified in court; juror 32 had a son who went to prison for a drug offense.
        In response to the prosecutor's explanations, defense counsel primarily focused on the State's failure to strike a white juror who was an practicing attorney and whose sister had a drug problem. Defense counsel also took issue with the State's rationale for not wanting an administrative judge on the jury. Additionally, he noted juror 32 stated he believed his son was treated fairly in prison. On appeal, defense counsel argues the disparate treatment given to the African-American jurors suggests the prosecutor's explanations were mere pretext for racial discrimination and resulted in only one African-American on the jury when there were five other African-American jurors that were qualified to sit on the jury.
        Defense counsel never cross-examined the prosecutor about the proffered reasons or presented any evidence showing the reasons given by the State were a pretext for racial discrimination. Instead, he merely argued the State's reasons were insufficient and inconsistent with its failure to strike the white attorney from the jury. We give great deference to the trial court's decision on the issue of purposeful discrimination because it requires an assessment of the credibility and content of the prosecutor's reasons and all other relevant facts and circumstances. Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). Based on the record before us, we conclude appellant has failed to meet his burden of proving discrimination in the State's use of peremptory strikes. We resolve appellant's first issue against him.         In his second issue, appellant asserts that the trial court erred when it denied his motion to suppress because the officers lacked reasonable suspicion to detain him initially. We review a trial court's ruling on a motion to suppress for an abuse of discretion under a bifurcated standard of review. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give almost total deference to the trial court's rulings on questions of historical fact, but we review de novo a trial court's application of search and seizure law. Id. at 768. At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, the trial court does not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).
        In this case, both officers stated that they believed, based on appellant's actions, appellant was attempting to urinate in public in violation of a city ordinance. Deferring to the trial court's credibility determinations, we cannot conclude the trial court erred in denying appellant's motion to suppress. Moreover, even assuming the initial stop was illegal, the discovery of the outstanding warrant during the initial stop breaks the connection between any taint associated with the stop and the later discovered evidence. See Lewis v. State, 915 S.W.2d 51, 54 (Tex. App.-Dallas 1885, no pet.). We resolve appellant's second issue against him.
        In his third and fourth issues, appellant argues that the evidence was legally and factually insufficient to prove that he had the requisite intent to deliver the cocaine. In a legal sufficiency review, we analyze the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272 at *7 (Tex. Crim. App. October 18, 2006). Before we may reverse for factual insufficiency, we must be able to say the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at *8. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        Here, the State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed with the intent to deliver cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003). Appellant argues the evidence is legally and factually insufficient to show he intended to deliver the cocaine because there was no evidence presented that proved he possessed the cocaine for resale rather than for his own personal use. He specifically relies on testimony from one of the arresting officers and the State's narcotics expert that the amount of cocaine found on appellant would not last a crack addict half a night during a party. We disagree with appellant's position.
        The undisputed evidence reveals that appellant possessed 41 small baggies totaling 5.4 grams of crack cocaine. The State's narcotics expert testified that each baggie contained the equivalent of a single hit, worth about five to ten dollars each, and was packaged for resale, which was inconsistent with possession for personal use. According to the State's expert, a user wanting the total amount of cocaine found on appellant would have not have purchased individual hits but would have bought a bigger rock of cocaine because it would have been cheaper. Other evidence supporting the jury's verdict includes the following: (1) the $294 found on appellant largely consisted of $1and $5 bills; (2) appellant did not have any drug paraphernalia on him when he was searched, (3) defense witness Kimberly Wright, who described herself as a close friend of appellant,   See Footnote 3  testified that to her knowledge, appellant does not smoke crack; and (4) appellant was unemployed at the time of his arrest.
        Viewed under the proper standards, we conclude the evidence was legally and factually sufficient to support the jury's determination that appellant knowingly or intentionally possessed with the intent to deliver cocaine. We resolve appellant's third and fourth issues against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
050422F.U05
 
Footnote 1 Batson v. Kentucky, 476 U.S. 79 (1986)
Footnote 2 Although appellant also raised a Batson challenge to potential juror number 41, this juror was outside the strike zone. On appeal, appellant acknowledges that this strike was considered moot because the selection stopped at juror number 37. Appellant does not put forth any argument with respect to the State's striking of juror 41.
Footnote 3 Wright also indicated that she had only known appellant for two days before his arrest.

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