Eric Jerome Lacy v. The State of Texas--Appeal from 363rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-071-CR

ERIC JEROME LACY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 363rd District Court

Dallas County, Texas

Trial Court # F93-69306-TW

O P I N I O N

Appellant was charged by indictment with unlawful possession with intent to deliver cocaine in an amount less than 28 grams. He waived a jury and entered a plea of not guilty. Trial was before the court, without a jury, after which the trial court found Appellant guilty and assessed his punishment at five (5) years confinement in the Texas Department of Criminal Justice, Institutional Division, and an $800 fine.

Appellant comes to this court on three points of error. Point one asserts the trial court erred in holding the evidence to be sufficient to prove that Appellant possessed, with intent to deliver, cocaine when the only evidence that tended to establish possession with intent to deliver the substance was objected-to hearsay. Point two contends the trial court erred in receiving prejudicial hearsay testimony over Appellant's objection as to the State's witness's information from a "confidential" informant with regard to a description of the persons who would be bringing the drugs.

By point three Appellant argues that the trial court erred in receiving prejudicial hearsay testimony over Appellant's objection as to the State's witness's information from a "confidential" informant with regard to the presence in plain view of cocaine in the van in which Appellant was a passenger.

We sustain Appellant's points two and three and reverse and remand the cause to the trial court for a new trial. We do not reach Appellant's point one which asserts factual insufficiency of the evidence as we do not believe this problem will arise in a new trial.

The State's only witness was Dallas Police Officer, Susan Harris, who was with her partner, Dallas Police Officer Danny Galegos, on November 9, 1993, at 12:25 P.M. when she came in contact with an individual named James E. Williams, a confidential informant. Officer Harris had told Williams that she wanted to purchase a half-ounce of cocaine, and she met with Williams at a motel room at 200 East Eighth Street in Dallas, Texas. She had told Williams that she wanted to pay $450 for the cocaine. As stated, Officer Harris was the only witness to testify in the case. Williams was never called to testify. In summary, Officer Harris undertook to testify to many facts that were objected to by Appellant on the grounds they were hearsay, some of which objections were sustained and others which were overruled by the trial court.

Officer Harris testified that she told Williams to "page the people" to bring the cocaine. Appellant objected to this testimony on grounds of hearsay because "the people" would imply that Williams, the informant who was not present to testify, had told Officer Harris that "the people" were the people who actually had the cocaine for sale. A voir dire established that Officer Harris was trying to testify concerning what Williams had told her (Harris) about "the people," whereupon Appellant renewed his objection which the trial court overruled.

After Officer Harris instructed Williams to "page the people," Williams made a telephone call. The State asked Harris what she overheard when Williams made the telephone call. That is to say, the State attempted to establish that Williams had "paged the people" to bring the cocaine. The trial court sustained this objection. Harris then testified that Williams made a phone call and then hung up the telephone. Harris then attempted to testify that she saw Officer Galegos look out the window and then heard him say something. Again Appellant objected on grounds of hearsay, which was first sustained by the trial court but, after discussion, the court overruled Appellant's objection. Harris then testified that when Galegos saw the van pull up, he said, "they're here." Appellant again objected on the grounds of hearsay contending that this statement was based on information that had been provided to Galegos by the informant as to who "they" were. This objection was sustained.

A police backup unit was located two blocks away from the motel where Harris, Galegos, and Williams were located. The State sought to establish that Harris had given the backup officers a description of the van and the suspects who would be bringing the cocaine. Appellant objected on grounds of hearsay for the stated reason that it was based upon what the informant had told the officer or officers. The trial court overruled this objection after which Officer Harris testified that she told the backup officers that two black males, approximately twenty years of age, would be arriving in a maroon van. Appellant took Officer Harris on voir dire and established that the description was based entirely on what informant Williams had told her. Appellant then repeated his hearsay objection to the description of the suspects that was relayed to the backup officers by Harris, which objection was again overruled.

The State again tried to prove that Harris had given the backup officers a physical description of the individuals who were to bring the drugs to the offense location, to which Appellant objected on grounds of hearsay, and which objection was sustained by the trial court. Harris testified that Williams then went outside the motel room, before which Harris had told Williams to give her a signal. Appellant objected on grounds of hearsay regarding what Williams' signal might have communicated to Officer Harris, which objection was overruled. Harris had told Williams to remove his hat when he saw the cocaine.

Williams left the motel room and entered a maroon van containing two black males, both seated in the front seat. Officer Harris saw Appellant Lacy and a man named Odems (the latter seated on the driver's side) turn around to Williams and engage Williams in a conversation. Appellant objected to any hearsay testimony by Officer Harris concerning what Williams might have done, which was overruled by the court. Officer Harris saw Williams get out of the van and then Williams removed his hat and, immediately thereafter, Williams came back into the motel room. Appellant asked for a "running objection" on any nonverbal expression by Williams, which was granted by the court.

The State and Appellant then stipulated that the arresting officers had at that time pulled into the motel parking lot and had walked up to the van where they had observed the glove box open with a clear plastic bag believed to be cocaine. Appellant and Odems were then arrested and the maroon van was searched. The cocaine was seized from the van and it was taken to the lab. Appellant was then searched and a pager was taken from his person. It was stipulated that the material seized contained less than 28 grams of cocaine.

The drugs had been in plain view and within Appellant's reach. Appellant was a passenger in the van. Officer Harris admitted on cross-examination that she did not know from personal knowledge whether the drugs had been in plain view or not. Although Harris was on the stand, her testimony was based almost entirely on what Williams had told her. Without detailing the entire statement of facts, it is fair to say that Appellant objected to this hearsay problem on a very frequent and nearly constant basis.

We revert to Appellant's second point of error wherein Appellant contends the trial court erred in receiving prejudicial hearsay evidence over timely objection as to Officer Harris's information from informant Williams regarding a description of the persons who would be bringing the drugs. When Officer Harris testified that two "involved" black males would be arriving in a maroon van, Appellant objected to her answering the question because it would have been necessarily based on what informant Williams told her. Appellant's objection was overruled. Next, the State sought to establish, through a hearsay statement of Officer Galegos, that "the people" then arrived in the maroon van. The record shows that Galegos's information about who "they" were was based entirely upon what informant Williams told the officers. This time, however, the trial court sustained Appellant's objection. For a case holding it to be reversible error for the trial court to admit hearsay statements of a confidential informant which went to the heart of the controversy, as in the case at bar, see Hill v. State, 817 S.W.2d 816 (Tex. App. Eastland 1991, pet. ref'd).

Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

See Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), for the proper way to perform a harmless error analysis.

Appellant's third point of error asserts the trial court erred in receiving prejudicial hearsay testimony, over timely objection, as to State's witness's information from a confidential informant with regard to the presence in plain view of cocaine in the van in which Appellant was a passenger. Officer Harris was allowed to testify that Williams got into the van in which Appellant was a passenger, engaged in a conversation, exited the vehicle, and removed his hat. Only Williams would have known whether the cocaine was in plain view in the van in which Appellant was a passenger. As stated before, Williams's taking off his hat was a prearranged nonverbal sign to Officer Harris that he saw cocaine in plain view inside the van. Tex. R. Crim. Evid. 801(a)(2), also cmt. (4).

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

Improperly admitted evidence must be considered as having probative value in determining the sufficiency of the evidence. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). An appellate court "has only the discretion to determine if any rational trier of fact could have, based on the evidence admitted at trial, found the essential elements of the offense beyond a reasonable doubt. Id.

Having reviewed the evidence admitted at trial in the light most favorable to the verdict, we hold that the evidence was sufficient to allow a rational trier of fact to find the essential elements of the crime of possession of cocaine, less than 28 grams, with intent to deliver. Matson, 819 S.W.2d at 843.

Under the authorities hereinabove cited, we sustain Appellant's second and third points of error and reverse and remand the case to the trial court for a new trial.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Reversed and remanded

Opinion delivered September 13, 1995

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