TROYCE DAMON STEELE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Issued September 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01497-CR
No. 05-07-01498-CR
No. 05-07-01499-CR
............................
TROYCE DAMON STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-35282-LP, F04-35284-LP, F04-35285-LP
.............................................................
OPINION
Before Chief Justice Thomas and Justices Bridges and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted Troyce Damon Steele of three charges of delivery of cocaine, found the offenses occurred within a drug free zone, found both enhancement paragraphs true, and assessed a thirty-five-year sentence and $5000 fine in each case. In three points of error, appellant complains the evidence is legally and factually insufficient to support his conviction in each of these causes. We affirm the trial court's judgment.
BACKGROUND
 
        An Irving, Texas undercover narcotics officer bought crack cocaine from a drug dealer on May 26, 2004; June 7, 2004; and June 15, 2004. As the drug dealer delivered the cocaine to the undercover officer at the June 15th buy, the undercover officer signaled backup police officers to arrest the dealer. Immediately, officers set off a “flash bang.”   See Footnote 2  In the resulting confusion, the drug dealer ran. The officers chased and arrested appellant.
SUFFICIENCY OF THE EVIDENCE
 
Appellant argues that the State did not present legally or factually sufficient evidence that appellant sold the drugs in each of the cases because the officers misidentified appellant. The State responds that the testimony supports the conviction. It argues that the police officer identified appellant in open court as the one from whom the officer bought the drugs on three different occasions. Additionally, the jury heard the tapes of appellant's conversations during those buys and could compare the voice on the tape with appellant's voice when he testified.
 
1. The Evidence
a. Ken Fay
 
Fay, an Irving Police Officer, testified that he served as an undercover narcotics officer for the Irving Police Department. He explained that when a citizen complains about drug traffic in his neighborhood, the Department sets up surveillance in which undercover officers dress in plain clothes and use unmarked vehicles to buy drugs. On the dates in question, Fay testified that he was working undercover at the Treehouse Apartments (Apartments), an area he described as near a school and occupied by adults and children.
Fay originally bought drugs from a man other than appellant. During that buy the dealer left Fay and went somewhere to get the drugs. After this buy, a man, who identified himself as T.R., telephoned Fay suggesting that Fay could buy drugs directly from him and did not need to go through someone else. Acting on that telephone call, Fay called the cellular telephone number T.R. gave him and arranged to purchase more drugs. Fay returned to the Apartments on May 26, 2004 to meet T.R. and make the first of three drug buys that are alleged in these indictments. Because Fay did not know appellant and would not recognize him, Fay called T.R. on his cellular telephone and continued to talk to him until appellant appeared and got into the passenger side of Fay's vehicle. Fay identified the man who got into his vehicle as appellant. They talked weights and prices for cocaine. Fay gave appellant $225 and appellant delivered seven grams of crack cocaine. Appellant told Fay the next time he wanted to buy drugs to park near the pool, a different location within the Apartment. Appellant explained he did not like to do deals inside a vehicle because vehicles could be “bugged” and instructed Fay to meet over by some bushes where appellant “does business.”
On June 7, 2004, Fay telephoned appellant when he got to the Apartments to buy drugs. Appellant appeared from around the bushes. Appellant gave Fay the drugs and Fay gave appellant $225. Fay told appellant he wanted to buy some powder cocaine.
Fay arranged for a third buy on June 15, 2004-the date of the “buy-bust operation.” This time appellant walked up to the driver's side door. Appellant wanted Fay to get out of his vehicle, but Fay declined. When appellant delivered the cocaine, Fay would signal the back-up officers by tapping his brake lights that the buy was complete. Appellant gave Fay crack cocaine and some powder cocaine as a sample. Fay, however, did not give appellant money because appellant ran when the “tac team” set off the “flash bang.”
Fay explained that backup officers were in the area to monitor any conversations between him and drug dealers. The backup officers had the ability to dial his cellular telephone   See Footnote 3  without Fay answering and listen to and record those conversations. The State had Fay identify the recorded conversations and the court admitted them without objection.
On cross examination, appellant questioned Fay about appellant's clothing at the last drug buy. Fay could only remember appellant's black jersey. Fay admitted that appellant, however, was not wearing a black jersey when the police arrested him some ten to fifteen minutes after the “flash bang.” When appellant questioned Fay about how he contacted appellant at this last meeting, Fay could not remember if he telephoned appellant or appellant telephoned him before the buy-bust.   See Footnote 4 
Appellant asked Fay if he brought Terry Williams's cellular telephone records to court. Fay denied that he had brought or subpoenaed any telephone records. He had, however, seen some cellular telephone records for a Terry Williams earlier that day.
In response to appellant's questions about Terry Williams, the State introduced the telephone records for 214.636.0299, the cellular telephone number that Fay called when he needed to reach appellant. Those records showed that 214.636.0299 was assigned to a Terry Williams although that number was the number that T.R. had given Fay. On May 26, 2004 at 6:02 p.m., 8:39 p.m., 8:51 p. m.; June 7, 2004 at 9:06 p.m.; and June 15, 2004 at 9:09 p. m., Terry Williams's telephone records showed calls placed to Fay's cellular telephone. Fay testified to receiving appellant's calls on those days at approximately those times. As Fay arrived at the May 26th meeting, he called T.R. on the number T.R. gave as his contact number. Fay was talking to T.R. and watched as appellant approached Fay's unmarked vehicle while they talked on their cellular telephones.
b. Joel Wasinger
 
Wasinger, the GIS coordinator for Dallas County Public Works, testified that he used the computer to draw a 1000 foot radius around the Sam Houston Middle School. Included within that circle was the Apartment complex. He had measured the thousand feet from the perimeter of the Irving Independent School District's property.
c. Rick Cutler
 
Cutler, an Irving Police Officer assigned to its SWAT or tactical team, testified that he is an undercover officer who executes search warrants and narcotics buy-busts and stakeouts. On June 15, 2004, he was assigned to a buy-bust operation and take-down. When the tactical team's van pulled in behind the undercover car that had just made the drug buy, appellant took off running through the apartment complex. Apartment residents assisted in the chase by pointing the officers in the directions appellant ran. The officers would lose sight of appellant from time to time, but the residents continued to direct the officers.
The officers searched parked vehicles and underneath those vehicles. They discovered appellant hiding under a vehicle. When discovered, appellant ran again. Eventually, the officers caught appellant and arrested him.
Cutler also testified that he used a laser beam to measure the distance from the apartment complex to the football practice field. As best as he could tell, the distance was over 1000 feet.
d. Appellant
 
Appellant testified that he did not live at the Apartments. Rather, he was visiting friends-Darryl Williams and his sister, Alana-that he had met at the corner Seven-Eleven. As he was walking through the complex, a man, whom he came to know as Officer Fay, yelled at him out the window of a dark colored truck. That was the first time he had ever seen Fay. Immediately, two men came running after him. One of the men threw a “dummy grenade” at him and it exploded. So, he took off running. It was about nine or nine-forty. Appellant denied that he was ever under a vehicle. Rather, he was between two vehicles when he saw a patrol car pull into the Summer Ridge apartments.   See Footnote 5  He ran up to the patrol car to flag down the police when another officer grabbed him and threw him down.
1. Standard of Review
a. Legal Sufficiency
 
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The factfinder is the exclusive judge of the evidence's weight and the testimony's credibility. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the factfinder's decisions on credibility and weight. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
 
b. Factual Sufficiency
 
In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and ask whether the evidence demonstrates the proof of guilt is so weak or that conflicting evidence is so strong as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We set aside a verdict only when, based on some objective basis in the record, we are able to say the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). However, we must give “almost complete deference” to the factfinder's determination on what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
3. Applicable Law
 
A person commits a first degree felony if he knowingly delivers or intends to deliver cocaine in an amount of four grams or more, but less than 200 grams. Tex. Health & Safety Code Ann. § 481.112 (a) & (d) (Vernon 2003). If that delivery or intent to deliver occurs within 1000 feet of the premises of a private or public school, it increases the minimum punishment by five years and doubles the fine. Tex. Health & Safety Code Ann. § 481.134 (a) (5) & (c) (Vernon Supp. 2008).
4. Application of Law to the Facts
 
Appellant only argues that the police misidentified him as the seller of cocaine. He does not contest that three deliveries of cocaine occurred. So, we look only to the evidence that supports the jury's verdict. Fay identified appellant as the one who sold him cocaine on three different occasions at the Apartments. Additionally, Fay testified that he had never seen appellant before the May 26th drug buy. When Fay went to the Apartments to make the May 26th drug buy, he had to telephone appellant on the cellular telephone number that T.R. supplied. As he talked with appellant, appellant approached Fay's vehicle and Fay watched him talking on his cellular telephone from the time he came into sight until appellant got into Fay's vehicle. Additionally, the police taped every drug buy Fay made from appellant. Those tapes were played to the jury. Appellant testified in his defense, and the jury heard and could compare his voice with the voice on the tapes to determine if they were the same. Fay also identified appellant in open court as the one from whom he bought drugs on three different occasions.
Appellant relies on the cellular telephone number assigned to someone other than himself to show he was not the man who sold Fay the drugs. Fay, however, testified that the cellular number he called was the number that T.R. gave him. Appellant was the one who answered that telephone number and approached Fay while they were both talking on their cellular telephones. Additionally, the cellular telephone records showed that same number dialed Fay's cellular telephone at the times and dates Fay testified that T.J. called Fay's cellular telephone. The jury determined which facts to believe. The evidence is legally sufficient to support the jury's verdict. We overrule appellant's first point of error in each of the three causes.
We agree that the evidence shows appellant wore a black jersey at the buy-bust, appellant did not have on a black jersey when arrested ten to fifteen minutes after the buy-bust, no one saw appellant discard a black jersey, and the police found no black jersey. Appellant not only denied selling any drugs but also maintained that he did not have a cellular telephone. Admittedly, contemporaneous notes were not kept, voice identification on the tapes was not tested, and cocaine bags were not fingerprinted, but the jury heard all of this and determined the credibility of the witnessess. They returned a verdict of guilty and we defer to the jury's decision on credibility.
Having reviewed all the evidence in a neutral light, we cannot say the supporting evidence was so weak that the verdicts were clearly wrong or manifestly unjust. Nor does the contrary evidence outweigh the supporting evidence so as to render the verdict clearly wrong and manifestly unjust. We overrule appellant's second point of error in each of the three causes. We affirm the trial court's judgment.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 As we understand from the record, a “flash bang,” is a type of explosive device used to create confusion.
Footnote 3 Fay carried two cellular telephones-one to use as a telephone and one to use to monitor conversations.
Footnote 4 Telephone records from a cellular telephone account opened by a Terry Williams showed telephone calls made to Fay's cellular telephone at or about the time Fay testified appellant telephoned him. Fay testified that the telephone number on which he called appellant was the same number assigned to Terry Williams.
Footnote 5 The Summer Ridge apartments are adjacent to the Apartments.