Willie Thornton v. The State of Texas--Appeal from County Crim Court No 5 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-99-308-CR

WILLIE THORNTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 5

Dallas County, Texas

Trial Court # F99-43676

O P I N I O N

Willie Thornton was convicted of possession with intent to deliver more than 4 grams but less than 200 grams of cocaine. Tex. Health & Safety Code Ann. 481.102, 481.112(d) (Vernon Supp. 2001). Punishment was enhanced by a prior offense, and Thornton was sentenced to 75 years imprisonment and a $10,000 fine. He appeals, asserting three issues for review. He complains that the court committed error when it failed to give an instruction on the lesser-included offense of possession and when it allowed the State to impeach him on the facts of a prior conviction. He also asserts that the evidence is factually insufficient to support his conviction. We will affirm the judgment.

THE FACTS

Because Thornton challenges the factual sufficiency of the evidence to support his conviction, we will detail the evidence as presented at trial.

mark pippins

Officer Mark Pippins testified that he and other officers surveyed a house on Canal Street (the house) and determined that it was a place from which drugs were regularly sold. A confidential informant was sent into the house to purchase drugs. A search warrant was issued and, on January 14, 1999, the officers executed the search warrant. Pippins testified that they arrived at the house around 9:00 p.m. Pippin observed a black male wearing a white shirt and white pants step onto the porch and look [toward the police]. Pippin stated that this man ran back into the house once he realized that the police were there. Pippin identified Thornton as the man he saw on the porch that night.

phillip elliott

Officer Phillip Elliott testified that he was involved in the execution of the search warrant on January 14. Elliott was responsible for stopping anyone running from the east and south sides of the house. After seeing Thornton run into the house, Elliott ran through the yard to the east of the house and saw Thornton as he ran out of the back of the residence of the target house, threw something in a car, then continued running through the back yard at an angle. Elliott testified that he then saw Thornton lie down between two cars. Elliott caught Thornton between the cars and placed him in custody.

Elliott testified that the object Thornton threw into a car was shiny and clear, like plastic. He testified that a baggie retrieved from the car by Officer George Pryor appeared to be the same object that Thornton tossed into the car.

Troy Klinglesmith

Officer Troy Klinglesmith testified that he drove a squad car to the house on January 14 for the execution of the search warrant. He stated that Thornton was on the front porch and ran into the house when the police arrived. Klinglesmith ran to the east of the house to catch Thornton. Klinglesmith saw Thornton attempt to hide between two cars and saw him place something under one of the cars, but did not see him throw anything into a car. Klinglesmith later determined that Thornton had placed a ring of keys under one of the cars. He testified that Elliott caught Thornton and placed him in custody.

George Pryor

Officer George Pryor testified that he also was part of the team executing a warrant on the house on January 14. He testified that he saw Thornton throw an object into a car while Elliott was chasing him. After Elliott placed Thornton in custody, Pryor retrieved the object from the car and saw that it was a baggie containing what appeared to be cocaine. A field test was performed on the substance in the baggie and it was determined to be cocaine.

Tamara Howard

Tamara Howard testified that she is a drug chemist with the Institute of Forensic Sciences in Dallas. Howard tested the cocaine that the officers testified was thrown into a car by Thornton. She found that the baggie contained 4.8 grams of cocaine, 5.8 grams including adulterants and dilutants.

Anthony Gipson

Anthony Gipson testified that he is a narcotics detective with the Dallas Police Department. He works with informants making undercover purchases of drugs and performs other duties which ultimately lead to the execution of search warrants specifically for drug-related crimes. He testified that it is not the normal practice to fingerprint a baggie of drugs when officers have seen someone in possession of the drugs. Gipson stated that fingerprints are taken only when trying to link the drugs to a person who has not been seen in possession of the drugs. He further testified that it is difficult to retrieve fingerprints from a plastic bag.

Gipson testified that 5.8 grams of cocaine is a large quantity, about ten to fifteen times the amount that an individual would use. He stated that someone buying 5.8 grams of cocaine is almost without exception buying them in order to resell all or a portion of the drugs. Gipson testified that the cocaine in the baggie that Thornton tossed into a car valued at about $580.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In conducting a factual-sufficiency review, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (citing Mata v. State, 939 S.W.2d 719, 729 (Tex. App. Waco 1997, no pet.) (Justice Vance, concurring)). When performing our review, we give due deference to the factfinder s assessment of the weight and credibility of the evidence. Id. at 9. We will find the evidence factually insufficient only where necessary to prevent manifest injustice. Id. at 11.

Thornton asserts that the testimony from Elliott and Pryor that they saw Thornton throw something into a car is insufficient to connect Thornton to the bag of drugs retrieved from the car. He alleges that Klinglesmith s testimony that he saw Thornton place a ring of keys under a car casts a shadow over the testimony that he threw a bag into a car. He maintains that the officers failure to test the bag for Thornton s fingerprints further weakens the evidence against him.

The evidence establishes that both Elliott and Pryor witnessed Thornton throw something into a car. They each identified a baggie of cocaine as the object which they saw Thornton throw into the car. Nothing else was retrieved from the car. The substance in the baggie tested positive for cocaine. Viewing all the evidence neutrally, we find the evidence is factually sufficient to support the jury s verdict. Id. Issue three is overruled.

JURY INSTRUCTION

In his first issue, Thornton complains that the court erred in failing to instruct the jury on the lesser-included offense of possession of a controlled substance.

In determining whether the trial court erred in failing to give a charge on a lesser-included offense, we review all of the evidence presented at trial. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We examine that evidence under a two-step analysis. Davis v. State, 22 S.W.3d 638, 640 (Tex. App. Waco 2000, pet. ref d) (citing Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993)). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense. Id. If a defendant presents no evidence and no other evidence raises the issue of a lesser offense, a charge is not required. Id. (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Garcia v. State, 17 S.W.3d 1, 5-6 (Tex. App. Houston [1st Dist.] 1999, pet. ref d)).

We focus on only the second step in the analysis because the State does not contest that possession of cocaine is within the proof necessary to establish possession with intent to deliver. Thus, the first prong is satisfied. See Tex. Health & Safety Code ANN. 481.112(a),(d); 481.115(a),(d) (Vernon Supp. 2001); see also Price v. State, 15 S.W.3d 577, 578 (Tex. App. Waco 2000, pet. ref d). Thus, we must find some evidence in the record that would permit a jury to find that if the defendant is guilty, he is guilty of only the lesser offense. Davis, 22 S.W.3d at 640.

Thornton maintains that he was not named in the search warrant nor was he the individual who sold drugs to the informant who the police used to obtain the warrant. The evidence is that the drugs were not packaged for individual resale and Thornton had no other money or drug paraphernalia on him. Nevertheless, Officer Gipson testified that the amount of cocaine in Thornton s possession (which he tossed into the car) was ten to fifteen times the amount that an individual would use. No evidence refuted this testimony. Gipson testified that somebody buying 5.8 grams [of cocaine] is almost without exception buying them in order to resell all or a portion of the drugs. This testimony was likewise not refuted. Thus, Thornton fails to establish the second step in the two-step analysis. The evidence does not establish that an instruction on the lesser-included offense of possession should have been given. Davis, 22 S.W.3d at 640. Issue one is overruled.

IMPEACHMENT

In his second issue, Thornton urges that the trial court erred in allowing the state to impeach him on the facts of the aggravated sexual assault with a deadly weapon offense which was used to enhance his punishment in the present case.

Rule 609(a) of the Rules of Evidence provides:

Rule 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

Tex. R. Evid. 609(a). Thornton does not deny that the fact of the conviction was admissible, but rather he asserts that he admitted that he had been convicted of aggravated sexual assault with a deadly weapon and that continued questioning regarding that offense was done for the sole purpose of inflaming the jury. In fact, he did not initially admit the conviction. He pled not true to that portion of the indictment asserting his prior conviction. The State questioned Thornton regarding that conviction as follows:

State: Mr. Thornton, really our question here is whether or not you were previously convicted of aggravated sexual assault with a deadly weapon.

Thornton: I was convicted of it, but I didn t do it. I just took probation so I can get out of jail.

State: Okay. Now let s take it one day at a time--or one question at a time. You pled not true to the second paragraph, which says that you were convicted of aggravated sexual assault with a deadly weapon. Now, are you saying that you have been convicted, or that you have not been convicted?

Thornton: I--I had got probation for it.

State: All right. Are you saying you have been convicted of it?

Thornton: Yes, sir.

State: All right. So when you pled not true, that s incorrect. You were the person in the pen packet that went to prison because--for having been convicted of aggravated sexual assault with a deadly weapon?

Thornton: Yes, sir.

The State went on to establish that, although Thornton did initially receive probation, it was revoked and he was sent to prison for aggravated sexual assault with a deadly weapon. Thornton continued to deny committing the offense, at which time the State asked Thornton if he remembered various facts of the crime. Thornton answered no.

A defendant who testifies at trial places his credibility at issue and may be impeached and contradicted like any other testifying witness. White v. State, 21 S.W.3d 642, 646 (Tex. App. Waco 2000, pet. ref d) (citing Harper v. State, 930 S.W.2d 625, 630-31 (Tex. App. Houston [1st Dist.] 1996, no pet.); Booker v. State, 929 S.W.2d 57, 65 (Tex. App. Beaumont 1996, pet. ref'd)). If he creates a false impression about his propensity for committing criminal acts, he opens the door for rebuttal evidence. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993). The trial court did not commit error in allowing the State to question Thornton about his prior conviction. Issue two is overruled.

Having overruled each issue presented, we affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Davis

Justice Gray, and

Justice Cummings (retired)

Affirmed

Opinion delivered and filed February 28, 2001

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