Larry Samuel Palmer v. The State of Texas--Appeal from 114th District Court of Smith County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00053-CR
______________________________
LARRY SAMUEL PALMER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 11-2447-06
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

A Smith County jury found Larry Samuel Palmer guilty of delivery of a simulated controlled substance. See Tex. Health & Safety Code Ann. 482.002 (Vernon 2003). The trial court assessed punishment at eighteen months' confinement in a state-jail facility and a $5,000.00 fine. The acts giving rise to the prosecution occurred in and around Troup, Texas, which is located in both Smith and Cherokee Counties. Palmer raises one issue on appeal: that the trial court was without venue, i.e., that the evidence was insufficient to show that any element of the crime of which he was convicted was committed in Smith County.

A. Venue

If there is no specific statute (1) governing the venue of an offense, venue is governed by the general statute, which provides that "the proper county for the prosecution of offenses is that in which the offense was committed." Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). Under Article 13.18, a charged offense is committed in two counties when some of the elements of the offense occur in one county and at least one element of the offense occurs in the other county. Jones v. State, 979 S.W.2d 652, 655 (Tex. Crim. App. 1998) (explaining Wood v. State, 573 S.W.2d 207, 210 (Tex. Crim. App. [Panel Op.] 1978)). When different elements of an offense are committed in different counties, the offense may be prosecuted in any county in which an element was committed. See Wood, 573 S.W.2d at 210-11. The State must prove venue by a preponderance of the evidence. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005).

B. Standard of Review

In a legal-sufficiency review of a venue determination, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged. Duvall v. State, 189 S.W.3d 828, 830 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Vanschoyck v. State, 189 S.W.3d 333 (Tex. App.--Texarkana 2006, pet. ref'd). A factual sufficiency review of the evidence traditionally (under the reasonable doubt standard) determines, after reviewing all the evidence in a neutral light, whether the evidence supporting the verdict is outweighed by the great weight and preponderance of the evidence or is so weak that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Here, the burden on the State is only to prove the venue facts by a preponderance of the evidence, rather than the beyond a reasonable doubt standard. Evidence sufficiently establishes venue if "from the evidence the jury may reasonably conclude that the offense was committed in the county alleged." Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). Venue may be established by direct or circumstantial evidence. Duvall, 189 S.W.3d at 831; Sixta v. State, 875 S.W.2d 17, 18 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

C. Elements of the Offense--Delivery of a Simulated Controlled Substance

The offense is defined as follows:

(a) A person commits an offense if the person knowingly or intentionally . . . delivers a simulated controlled substance and the person:

 

(1) expressly represents the substance to be a controlled substance; [or]

 

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance . . . .

 

Tex. Health & Safety Code Ann. 482.002(a).

"Simulated controlled substance" is defined as "a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be." Tex. Health & Safety Code Ann. 482.001(4) (Vernon 2003). "Expressly represents," under Section 482.002(a)(1), requires the use of the specific term defined in the Controlled Substances Act, e.g., "methamphetamine," and not a slang equivalent. See Grant v. State, 822 S.W.2d 639 (Tex. Crim. App. 1992); Jenkins v. State, 820 S.W.2d 178 (Tex. Crim. App. 1991); Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). "Represents," under Section 482.002(a)(2), is further explained in Section 482.003, which provides evidentiary rules for determining whether a person has represented a simulated controlled substance to be a controlled substance in a manner that would lead a reasonable person to believe the substance was a controlled substance. See Tex. Health & Safety Code Ann. 482.003 (Vernon 2003). The statute establishes that, in making the determination, the court:

may consider, in addition to all other logically relevant factors, whether:

 

(1) the simulated controlled substance was packaged in a manner normally used for the delivery of a controlled substance;

 

(2) the delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance and the amount of the consideration was substantially in excess of the reasonable value of the simulated controlled substance; and

 

(3) the physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

 

Tex. Health & Safety Code Ann. 482.003(a).

Palmer was found to have delivered "by actual transfer" a substance purported to be, by express representation or in a manner that would lead a reasonable person to believe it was, methamphetamine. The State presented evidence that the transfer, i.e., the exchange of money for substance, took place outside Troup in Cherokee County. Nonetheless, the State asserts that the representation that the substance was methamphetamine took place during negotiations for the sale at Palmer's house in the Smith County part of Troup.

Palmer asserts that the representation that the substance was methamphetamine must be made contemporaneously with the delivery, which was in Cherokee County. Palmer asserts that myriad cases require that the representation that a substance is a controlled substance be made contemporaneously with the sale or transfer of that substance. See Grant, 822 S.W.2d 639; Jenkins, 820 S.W.2d 178; Boykin, 818 S.W.2d 782; Evans v. State, 945 S.W.2d 259 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd); Holliman v. State, 692 S.W.2d 120 (Tex. App.--Waco 1985, pet. ref'd). We have reviewed Palmer's cited cases and disagree. In all these cases, to the extent the facts indicate any sense of the timing of the delivery and representation, these elements seem to have occurred at least relatively contemporaneously. But in none of these cases is the timing of the elements in issue. None of Palmer's cited cases analyzes, let alone requires, contemporaneity between the representation and the delivery.

Neither is contemporaneity required under the plain language of the statute. See Tex. Health & Safety Code Ann. 482.002(a). We are also not persuaded by Palmer's contention that the chapter's nonexclusive evidentiary rules (see Tex. Health & Safety Code Ann. 482.003) mandate that the representation and delivery elements be contemporaneous. While it is true that the first and third considerations (the packaging and physical appearance of the substance actually transferred) cannot be observed until actual transfer, the second consideration (exchange of or demand for property as consideration) does not require actual transfer at all. See Tex. Health & Safety Code Ann. 482.003(a). This is consistent with the statutory definition of "delivery," which is not limited to physical transfer and "includes offering to sell a simulated controlled substance." Tex. Health & Safety Code Ann. 482.001(2) (Vernon 2003). To interpret the statute to mean that a representation that a substance is a controlled substance may only be made contemporaneously with actual transfer of the simulated controlled substance would create, rather than resolve, an ambiguity in the statute that otherwise defines the offense in such a way as to not require actual transfer. Where a statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from the statute. Boykin, 818 S.W.2d 782. We decline to add a contemporaneity requirement to the statute.

Thus, if sufficient evidence supports that Palmer made a representation in Smith County that a simulated controlled substance was a controlled substance--either expressly or in a manner that would lead a reasonable person to believe the substance was a controlled substance--then venue in Smith County was appropriate.

D. The Evidence

Steve Henry, a detective with the Smith County Sheriff's Department, testified that on July 20, 2006, he and a confidential informant (CI) went to Palmer's house on the Smith County side of Troup, Texas. Henry remained in the car while the CI spoke with Palmer. Palmer and the CI's brief conversation was recorded, with video and audio, on a camera concealed in a button. The State played the DVD of the July 20 meeting for the jury. (2)

The State commented at the trial while the DVD was playing: "[y]ou hear the defendant stating that he could basically get an eight ball -- he can get an eight ball for [the CI], isn't that correct?" Detective Henry agreed. Henry explained that, "[w]ith individuals that are in the drug industry," an "eight ball" is a common name for "3.5 grams of methamphetamine." Henry also stated that, based on his training and experience, he reasonably believed that Palmer was going to be producing methamphetamine based on the "offer to sell that dope" on July 20.

The CI testified that on July 20, he received money from Detective Henry to try to purchase drugs from Palmer but that he was not able to purchase on that day. The CI agreed that on July 20, he and Palmer talked about setting up a deal to buy methamphetamine. The CI stated that on July 20, Palmer "said a gram was, like, 100 to 8 bucks. And he couldn't get -- could buy an eight ball for $250; and I didn't have enough money to get an eight ball that day" and Palmer did not have the "eight ball" at that time, either. The CI also said that on July 20, Palmer offered to sell him "an eight ball for 250 bucks."

Henry and the CI returned to Palmer's house in Smith County on July 25, 2006. Again, Henry stayed in the car while the CI went to the house and spoke with Palmer. A second DVD, of the meeting at Palmer's house on July 25, was played for the jury, and Henry again commented as it played. (3)

Henry related that on the July 25 DVD, the CI said, "[w]e got the money for the eight ball," and Palmer replied it would take forty-five minutes to get an eight ball. The CI said that he engaged in discussions about the methamphetamine and "ice" on July 25 at Palmer's home. The CI agreed that Palmer, at his home, represented that the substance he was going to purchase was methamphetamine by referring to it as an "eight ball" and "ice." The CI also testified that based on Palmer's representations and the CI's knowledge, the CI believed the substance they were discussing was methamphetamine. The CI also said that he is familiar "with some of the suppliers" in the Troup area and with "Palmer as being a supplier."

The DVDs shown to the jury establish that Palmer, in Smith County, first established a price of about $250.00 for an "eight ball" and later agreed to meet to provide a "ball." The jury heard testimony from the CI and Detective Henry that the term "eight ball" carries, in the drug community, a particular and common meaning: 3.5 grams of methamphetamine. The jury heard the testimony of Henry and the CI that, based on Palmer's representations in Smith County, they believed he was representing that he would deliver a controlled substance. The fact that further representations were also made in Cherokee County is of no consequence. See Wood, 573 S.W.2d at 210 (a single element can occur in several counties); Tucker v. State, 751 S.W.2d 919, 924 (Tex. App.--Fort Worth 1988, writ ref'd) (continuing transaction, in which an offense is committed across several counties raises venue in one of those counties).

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, by a preponderance of the evidence, that the representation element of the offense occurred in Smith County. Viewing all the evidence in a neutral light, we cannot say the evidence supporting venue in Smith County is outweighed by the great weight and preponderance of the evidence or is so weak that the finding of venue in Smith County is clearly wrong or manifestly unjust. The jury could reasonably conclude, by a preponderance of the evidence, that the representation element of the offense was committed in the county alleged. We overrule the point of error.

We affirm the judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: November 21, 2007

Date Decided: December 5, 2007

 

Do Not Publish

1. This is not a case in which the exact location within the State of Texas where the offense occurred cannot be readily identifiable, thus allowing prosecution in the county of the defendant's residence. See Tex. Code Crim. Proc. Ann. art. 13.19 (Vernon 2005). Neither is it a case where the offense occurred on, or within 400 yards of, a county line. See, e.g., Tex. Code Crim. Proc. Ann. art. 13.04 (Vernon 2005) (applicable to an "offense committed on the boundaries of two or more counties, or within four hundred yards thereof").

2. The DVD has poor audio and video quality. Nonetheless, our review of the DVD reveals that the DVD depicts a markedly different exchange than that testified to by the State's witnesses. Our review of this DVD reveals that the CI asked about "coke"; Palmer responded that the CI had contacted him about "weed." Palmer stated he did not know how much a "G" costs. The CI asked how much "an eight ball" would cost and Palmer replied, "normally costs 250. Could be 3-0. I don't know."

3. The second DVD also has poor audio and video quality and, again, our review reveals a different exchange than that testified to by the State's witnesses. In our review of the July 25 DVD, the CI states, "I'm trying to get a ball." Palmer replies, "Oh really? When do you need it?" The CI answers, "Now." Palmer states, "It'll take about 45 minutes."