Samuel Edward McMurray v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-281-CR

SAMUEL EDWARD McMURRAY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 22,361-85

O P I N I O N

After a bench trial, the court found Samuel McMurray guilty of two counts of delivery of a controlled substance and assessed punishment of ten years' imprisonment, probated for ten years. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon Supp. 1995). McMurray brings two points of error, claiming first that the court erred by denying his motion for an instructed verdict at the close of the State's case in chief, and, second, that the evidence is insufficient to support his conviction. McMurray argues that the evidence is insufficient to identify him as the actor in the offenses. We will affirm the judgment.

"[A] challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction." Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). If we conclude that the evidence is sufficient, we are not required to determine if the evidence was insufficient at the time the State rested its case in chief. See id.

In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. See Reeves v. State, 806 S.W.2d 540, 543 (Tex. Crim. App. 1990); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). As the fact-finder, the court is the exclusive judge of the witnesses' credibility and the weight given their testimony. See Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831, 109 S. Ct. 86, 102 L. Ed. 2d 62 (1988). Reconciliation of conflicts and contradictions in the evidence is the fact-finders' role. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). "[T]he evidence is not rendered insufficient simply because [McMurray] presented a different version of the events." See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

The State charged McMurray with two counts of delivery of a controlled substance. In count one, the State accused him of delivering less than twenty-eight grams of cocaine to a narcotics investigator, David Clark, by offering to sell cocaine to the officer. See Tex. Health & Safety Code Ann. 481.002(8) (Vernon 1992). In the second count, McMurray was alleged to have delivered less than twenty-eight grams of cocaine to a second investigator, Cannon Perdue, by actually transferring the cocaine to the officer. See id. In each instance, the State produced a videotape of the transactions between the officers and the drug dealer. Each officer stated categorically that McMurray was the individual who approached him and either offered to sell cocaine, in Clark's case, or, actually sold cocaine, in Perdue's case, to the officers. The officers also identified McMurray on the videotape as it was being played for the court.

McMurray claims that the court's comments indicate that the judge relied on the videotape and not on the officer's identifications to find that he was the perpetrator of the offenses. However, we review the evidence, not the court's comments. See Mattias, 731 S.W.2d at 939-40. Thus, when the evidence as a whole is sufficient to support the court's judgment, we will not evaluate the sufficiency of the evidence to support specific comments or findings of the court. See id.

The officers' testimony, standing alone, is sufficient to support the court's finding that McMurray was the perpetrator of the offenses alleged. See Reeves, 806 S.W.2d at 543; Moreno, 755 S.W.2d at 867. Thus, the evidence is sufficient to support his conviction. Points one and two are overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 5, 1995

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