WALTER MYERS RICE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 5, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00722-CR
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WALTER MYERS RICE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F07-73469-XKY
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MEMORANDUM OPINION
Before Justices Morris, Bridges, and Murphy
Opinion By Justice Murphy
        This is an appeal from a jury conviction for the delivery of marijuana in an amount of five pounds or less but more than one-fourth ounce. See Tex. Health & Safety Code Ann. § 481.120(a),(b)(3) (Vernon 2003). In three points of error, Walter Myers Rice complains of the trial judge's response to two jury notes and the factual sufficiency of the evidence to support the conviction. We affirm.
Background
        Rice was arrested following a “buy walk bust” operation led by undercover Dallas detectives Gregory Garcia and Anthony Andujar. The operation occurred in July 2007 at a car wash in a known “hot spot” for drugs.         Garcia and Andujar testified at the May 2008 trial that Rice had a five-gallon plastic bucket and appeared to be ready to wash cars when they arrived at the car wash. Although Rice “could [have] look[ed] like a homeless person” and neither Garcia nor Andujar had any “prior intelligence” on him, Garcia asked Rice if Rice could “help . . . with some [marijuana].” Rice replied he could, and the two agreed on a price of $80 for an ounce. Rice then made a call with his cell phone and set up the buy.
        Twenty to thirty minutes later, a maroon Cadillac pulled in behind them. Garcia gave Rice $80, and Rice got the marijuana from the car. The marijuana was “stuffed” inside “several small[] baggies” and wrapped in one “big ball of plastic.”
        Not wanting to “burn [their] undercover identity” and thinking Rice “would be a good . . . confidential informant,” Garcia and Andujar did not arrest Rice at the car wash.   See Footnote 1  Instead, they returned to their office and prepared a warrant for Rice's arrest. Rice was arrested four months later by another officer.
         Garcia's and Andujar's testimony was corroborated in large part by detectives Willie Mark and Kenneth Francis. Mark and Francis testified they provided “cover” for Garcia and Andujar from an unmarked car parked about fifty feet from the car wash. Although they could not see the marijuana and could not “positively identify” Rice as the person who delivered the marijuana to Garcia because of their distance from the car wash, they observed the “negotiation,” phone calls, arrival of the Cadillac, and delivery. Francis believed Rice “looked like the person [he] saw” at the car wash. Additionally, although the conversation between Garcia and Rice was not recorded, they could hear the two talking through “an audio transmitter” Garcia was wearing.
        Rice's sole witness, Lieutenant John Dohmann, testified Rice had a cell phone on him when he was arrested but the cell phone was missing the battery. Following the conviction, the jury assessed an enhanced punishment of seven years' confinement. See Tex. Penal Code Ann. § 12.42(a) (Vernon Supp. 2008).
         The Jury Notes
        Rice's first two points of error stem from the following two notes the jury sent to the trial judge over an hour into deliberations:
        
 
We, the jury, are in disagreement about what Det. Garcia testified to that he did after he left the car wash. Further, we are in disagreement as to what he testified to about whether he completed the arrest warrant at that time.
 
        
 
The jury is also in disagreement regarding what Det. Garcia said about wanting to work with Mr. Rice as a confidential informant.
 
 
Outside the jury's presence, the judge informed the parties that he found the jury was in “specific disagreement about specific testimony” and that he intended to answer the notes with the following two excerpts of the State's direct examination of Garcia:
        First excerpt:
 
 
Q.        Explain to the jury at that time why you did not place the defendant under arrest?
 
 
 
A.        Sure. As I mentioned, it is a hot spot. There is a real high probability that I was going to be going out there again. I had already placed the - - who I believed to be the supplier the time, the individuals in the Cadillac. They had been stopped and arrested.
 
 
 
        And so, you know I was going back to the office, one, to do the arrest report on them, do the interviews and kind of wrap up that investigation. I didn't want to make a full-fledged arrest out there at that time of Mr. Rice. I didn't want to burn my undercover identity. I don't want to burn my undercover car. And I also thought Mr. Rice would be a good what we call confidential informant, somebody who works with police. He had a cell phone. He seemed to know a lot of people. I thought he would be a good source of information at the time.
 
        Q.        So, do you recall how you identified the defendant formally?
 
        A.        Yes, ma'am.
 
        Q.        And tell the jury how that was. How you did that?
 
 
A.        Yes, ma'am. After I left the car wash at Holly Hill, returned back to the narcotics office -
 
        
        [Defense Counsel]: Your honor, I'm going to object at this time. Can we approach?
 
        The Court:        Yes, sir.
 
 
Second excerpt:
 
 
 
Q.        Detective, as we took a break, you testified you did later identify the defendant, is that correct?
 
        A.        Yes, ma'am.
 
        Q.        After doing that, did you prepare an arrest warrant?
 
        A.        Yes, ma'am, I did.
 
        Rice objected to this proposed response, arguing it was “too voluminous” and “could be pared down” to one sentence for each question:
        1. In response to what Garcia did after he left the car wash: “Yes, ma'am, after I left the car wash at Holly Hill, I returned back to the narcotics office.”
        2. In response to what Garcia's thoughts were on using Rice as an informant: “And I also thought Mr. Rice would be a good - what we call a confidential informant, somebody who works for the police.”
        3. In response to when he completed the arrest warrant: “And, so, you know, I was going back to the office, one, to do the arrest report on him, do the interviews and kind of wrap up the investigation.”
        Finding the above excerpts needed to be read to the jury in their entirety “to give the jury some kind of context about how [Garcia] got to that place in his testimony in the first place,” the judge overruled Rice's objection.   See Footnote 2  Rice now complains of this ruling, asserting the court abused its discretion under article 36.28 of the Texas Code of Criminal Procedure by exceeding the scope of the request. Rice maintains the “excess” testimony amounted to a comment on the weight of the evidence and prejudiced him.
        Article 36.28 allows the jury in a criminal case to have testimony read if, in the course of their deliberations, a dispute arises among the jurors concerning a witness's statement. Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006). Specifically, article 36.28 provides that “if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other.” Id. This statute seeks to balance a concern that the trial court not comment on the evidence with the need for the jury to resolve any factual disputes it may have. Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005). When the jury asks for a reading of the testimony, the trial court must first determine if the request is proper and then interpret the communication, decide what sections of the testimony best answer the query, and limit the testimony accordingly. Iness v. State, 606 S.W.2d 306, 314 (Tex. Crim. App. 1980); Fox v. State, 283 S.W.3d 85, 88-89 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd). In determining what sections of the testimony best answer the query, the court may include testimony not directly on point but which places in context the testimony on point. See Brown v. State, 870 S.W.2d 53, 56 (Tex. Crim. App. 1994). We review a trial court's ruling under article 36.28 for an abuse of discretion and will reverse only upon a showing that the court acted without reference to any guiding rules or principles and appellant has been harmed. Howell, 175 S.W.3d at 792.
        In support of his argument that the court exceeded the scope of the jury's inquiry and his conviction should be reversed, Rice cites Pugh v. State, 376 S.W.2d 760 (Tex. Crim. App. 1964). In Pugh, the jury sent a note two hours into deliberations asking a fact-specific, but simple, question: the date and hour Pugh had been arrested. Id. at 761. The jury received an answer stipulated to by the parties and resumed deliberations. Id. On the court's own motion and over Pugh's objection, however, the jury was summoned back to the courtroom where the judge had the court reporter read a portion of the arresting officer's testimony. Id. That portion included the officer's observations of Pugh's driving and his efforts to stop Pugh, but made no reference to the date or hour in dispute. Id. at 761-62. Concluding this testimony “tended to bolster the [S]tate's case,” the court of criminal appeals held the court's action “was not authorized” and reversed the conviction. Id. at 762. Rice asserts the jury questions here, like the jury question in Pugh, called for simple, one-sentence answers. We disagree.
        Unlike the jury in Pugh, the jury here asked three questions at the same time. All concerned the same witness-Garcia-and all stemmed from the same portion of the record-his discussion concerning his actions and thoughts following the transaction. Additionally, two of the questions called for detail-the one asking what Garcia did after he left the car wash and the one asking what Garcia said about wanting to work with Rice as a confidential informant. The third question-whether Garcia completed the arrest warrant after leaving the car wash-was arguably the one that called for the “simplest” answer, but was asked in conjunction with the question concerning Garcia's acts following the transaction. Because these questions concerned the same portion of Garcia's testimony and were asked together, we conclude the trial judge did not abuse his discretion in answering the questions the way he did. By providing the jury with the excerpted portion of Garcia's testimony instead of discrete, isolated answers, the judge provided a natural flow to the answers and the detail the jury was seeking. Although portions might not have been directly on point, those portions were minimal and provided context for the testimony on point. See Brown, 870 S.W.2d at 56. Answering the questions as suggested by Rice would have given the jury isolated answers with no context and without the detail the jury sought concerning Garcia's thoughts on Rice as a confidential informant and his actions after leaving the car wash. We overrule Rice's first two points of error.
Factual Sufficiency of Evidence to Support Conviction
        Rice's third point of error is a challenge to the factual sufficiency of the evidence to affirm the conviction. Our inquiry in a challenge to the factual sufficiency of the evidence to support the conviction begins with the assumption that the evidence is legally sufficient. See Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We then determine whether the evidence is factually sufficient. We will conclude the evidence is factually insufficient if (1) the supporting evidence is “too weak” to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is against the great weight and preponderance of the evidence. Id. In making this determination, we consider all the evidence in a neutral light. Id. Although we defer to the jury's findings, we may override the verdict to “'prevent manifest injustice.'” Id. (quoting Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id.
        In arguing the evidence is factually insufficient, Rice does not cite any portion of the record that shows he was not the person who delivered the marijuana. Viewing the evidence in the light most favorable to the verdict, we have found none. Rice instead relies on the lack of physical evidence and select portions of the testimony of Garcia, Andujar, Mark, and Francis. Specifically, Rice argues the State failed to call the driver of the Cadillac or any passengers as witnesses and failed to offer as evidence (1) an audio recording of the transaction, (2) Rice's cell phone records, or (3) fingerprints from the baggies delivered to Garcia. Rice also asserts Garcia did not know who arrested Rice, could not recall how Rice was dressed, had not previously met Rice, had no “intelligence” on Rice, and had handled “hundreds of cases.” Similarly, Andujar could not recall how Rice was dressed, how tall Rice was, or how much Rice weighed; he testified other people, some of whom were homeless, were at the car wash and Rice “could [have] look[ed] like a homeless person.” Finally, Rice notes neither Mark nor Francis could positively identify him nor provide a description of what the person who delivered the marijuana was wearing the day of delivery. Rice maintains this state of the record, coupled with the “common knowledge that eyewitness identification is generally unreliable,” casts “serious” doubt over the credibility of Garcia and Andujar such that their identifying testimony, given almost a year after the transaction, could not support the conviction.
        Viewing the evidence in a neutral light, however, we conclude the jury's verdict is supported by the evidence and our review reveals no “manifest injustice” that would allow us to override the verdict. All witnesses testified a transaction took place, and both Garcia and Andujar identified Rice as the one who secured and delivered the marijuana. This testimony was sufficient to support the jury's finding of guilt. See Tex. Health & Safety Code Ann. § 481.120(a),(b)(3) (person commits state jail felony offense of delivery of marijuana if he knowingly or intentionally delivers marijuana in amount five pounds or less but more than one-fourth ounce). By finding Rice guilty, the jury necessarily believed the identifying testimony. This finding was within the jury's province and we will defer to that determination. See Laster, 275 S.W.3d at 524-25 (concluding appellate court properly deferred to jury's determination of witnesses' credibility). We overrule Rice's third point of error.
        We affirm the trial court's judgment.
 
                                                  
                                                          MARY MURPHY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080722F.U05
 
Footnote 1          The driver and a passenger in the Cadillac were arrested after leaving the car wash.
Footnote 2          The judge offered to redact from his answer Rice's objection to the State's question to Garcia concerning how he identified Rice “formally,” but Rice declined the offer.