Bert Kevin Boyce v. The State of Texas--Appeal from 282nd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-158-CR

BERT KEVIN BOYCE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 282nd District Court

Dallas County, Texas

Trial Court # F93-70498-VS

O P I N I O N

Bert Kevin Boyce was indicted for possession of a controlled substance, cocaine, with intent to deliver, enhanced by one prior felony conviction. See Tex. Health & Safety Code Ann. 481.115 (Vernon Supp. 1995). After a jury convicted him and he pled true to the enhancement, the court assessed punishment at twenty five years. See Tex. Penal Code Ann. 12.42 (Vernon 1994). He brings two points of error: (1) insufficiency of the evidence to support the conviction because the State failed to prove that he knowingly possessed the controlled substance and (2) error in the court's charge in failing to instruct the jury on the issue of voluntariness of the act of possession.

SUFFICIENCY OF THE EVIDENCE

Boyce's first point asserts that the evidence is insufficient to sustain the conviction. 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). Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we position ourselves as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We have only the discretion to determine if any rational trier of fact, considering the evidence admitted at trial, could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We do not make our own myopic determination of guilt from reading the cold record. See Moreno, 755 S.W.2d at 867. We do not disregard, realign, or weigh evidence. See id.

Dallas narcotics officer Susan Harris, working as an undercover agent, set up a potential "buy" of cocaine through a confidential informant. At the arranged time, she was in the parking lot of Methodist Hospital in Dallas, sitting in a black Cadillac. Officer Harris told the informant to page the suspects. Shortly afterward, the informant told Officer Harris that two males would be arriving in a BMW. She saw a BMW arrive with two males a man named Reese driving and Boyce as a passenger both of whom waved to the informant. Reese parked the BMW behind the Cadillac, and the informant and Boyce started talking. Boyce removed the keys from the ignition, went to the trunk of the BMW, and opened it. Officer Harris saw a set of scales on top of "lots of clothes" in the trunk, then saw Boyce pull a plastic bag from the trunk. He placed the bag on the scales, then "seemed to get angry" because the informant did not have the money readily available. The informant removed his hat and began walking towards the hospital. Boyce followed. Because the informant had been instructed to remove his hat when he saw any cocaine, Officer Harris contacted back-up officers, who came to the scene. Reese was arrested after he got out of the BMW; Boyce was arrested in the hospital. When the officers opened the trunk, they found the bag on the scales. Although no weapons were found, a cellular telephone was in the BMW, and Reese was carrying a pager.

A chemist testified that the substance in the bag was 84.6 grams of powder that was 77 percent pure, or 64.9 grams of pure cocaine.

Boyce testified that he had encountered Reese earlier that day, and Reese had asked for directions to a high school near Methodist Hospital. In exchange for a ride home, he agreed to show Reese the way. He said he did not know about the cocaine in the trunk and he remained in the vehicle while Reese talked to the informant and opened the trunk. He said Reese went to the hospital building with the informant and he, Boyce, was arrested at the vehicle. He denied any knowledge of the drug transaction.

Sergeant Jackson Misak, who had been on the backup team, testified that Boyce was wearing the same clothes at trial as he had worn on the day of the arrest and that it was Boyce who was walking towards the hospital with the informant. Sergeant Misak also testified that he arrested Reese near the BMW. Officer Musgrove testified that he arrested Boyce inside the hospital building. Officer Willhoite testified that he assisted Officer Musgrove in arresting Boyce in the hospital, then took him out to the BMW.

Boyce's entire argument under this point asserts that the evidence is insufficient because his version of events is more credible than that of the officers. The trier of fact is, however, the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App. San Antonio 1990, pet. ref'd). The law is well-settled that contradictory testimony does not render the evidence insufficient. Mercado v. State, 695 S.W.2d 25, 29 (Tex. App. Corpus Christi, 1985), aff'd, 718 S.W.2d 291 (1986). Later contradictory evidence does not destroy the probative value of earlier testimony. Id. Viewed in the light most favorable to the verdict, the evidence amply supports a finding of Boyce's knowledge of and control over the controlled substance. See Matson, 819 S.W.2d at 843. We overrule point one.

THE COURT'S CHARGE

Boyce's second point asserts the court erred in denying an instruction he requested regarding the voluntariness of his acts. He points to section 6.01(b) of the Penal Code, which provides: "Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." See Tex. Penal Code Ann. 6.01(b) (Vernon 1994). He says that, because of this provision, he was entitled to a further charge on the issue of voluntary possession of the controlled substance. We disagree.

In the absence of evidence that conduct was involuntary, the conduct is voluntary as a matter of law. Moss v. State, 850 S.W.2d 788, 795 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). Boyce did not admit to possessing cocaine, then contend that his possession was involuntary. Rather, his position at trial was that he was not the primary actor in the transaction Reese was. Thus, the jury was confronted with believing either his version or that of the officers. However, because the charge included the law of parties, the jury was authorized to convict Boyce either (1) as the primary actor or (2) as a party. See Tex. Penal Code Ann. 6.01, 7.01, 7.02 (Vernon 1994). If the jurors believed Boyce was the primary actor, Boyce had raised no issue about whether his possession of the substance was voluntary. If the jurors believed Reese was the primary actor, the issue for the jury was whether Boyce, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Reese in the commission of the offense. See id. 7.02(a)(2). Thus, under either alternative, voluntariness of the possession was not a question for the jury. See Moss, 850 S.W.2d at 795. We hold that the court did not err in failing to honor Boyce's request for an additional instruction. We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 21, 1995

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