Damon Wynn Cockerham v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-92-146-CR

DAMON WYNN COCKERHAM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 92-012-CR

O P I N I O N

Damon Cockerham appeals his conviction for aggravated possession with intent to deliver a controlled substance. // A jury found Cockerham guilty and assessed punishment at twenty-five years in prison and a $25,000 fine. We affirm.

In point one Cockerham contends that the evidence is legally insufficient to sustain his conviction for possession with intent to deliver a controlled substance. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence 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. // Specifically, Cockerham contends that there is no evidence that he had the intent to deliver cocaine.

Monte Posse, a highway patrol officer with the Texas Department of Public Safety, testified that he found a kilogram of cocaine in a package inside a purse that was in a suitcase in the trunk of the car driven by Cockerham. Henry Amen, a chemist with the Department of Public Safety, identified the controlled substance as 1000 grams of cocaine hydrochloride, from which crack cocaine is made. Don Sylvest, a deputy with the Freestone County Sheriff's Department, testified that a normal amount of cocaine sold for personal use is one gram. According to Sylvest, based on his training and experience as an undercover narcotics officer, in his opinion 1000 grams of cocaine would not be for personal use, but for resale. Sylvest also testified that the street value of one kilogram of cocaine was between $17,000 and $20,000 dollars, but that diluted and sold by the gram it would bring $200,000 on the street.

Intent to deliver can be inferred from the quantity of the drugs possessed. // Furthermore, the Houston Court of Appeals has previously held that possession of 1000 grams of cocaine was sufficient evidence to infer that possession was with the intent to deliver. // Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found, beyond a reasonable doubt, that Cockerham possessed the cocaine with the intent to deliver. Accordingly, we overrule point of error one.

In point two Cockerham contends that the trial court erred in overruling his objection that the charge to the jury lacked an instruction on unlawful arrest. When a fact issue is raised regarding the legality of an arrest, the defendant has a statutory right to have the jury instructed accordingly. // However, Cockerham fails to include any argument and authorities or references to the record under this point suggesting how a fact issue has been raised regarding the legality of his arrest. // The uncontroverted evidence indicates that Posse arrested Cockerham for possession of cocaine after discovering the controlled substance in a suitcase which Cockerham claimed as his own. As a result, the arrest was legal as a warrantless arrest for an offense committed within the officer's view. // Because Cockerham failed to raise a fact issue regarding the legality of his arrest, the court properly overruled his objection. // Therefore, we overrule point of error two.

In point three Cockerham contends that the trial court erred in denying his motion to suppress evidence obtained as a result of Posse's search of the vehicle driven by Cockerham. Posse testified that the initial stop was made to investigate two traffic violations speeding and illegal tinting of windows. Posse also testified that he asked for permission to search the vehicle because Cockerham was driving a very expensive vehicle that he did not own, his hands shook noticeably when he handed the insurance papers to him, he offered an unsolicited explanation for his traveling between Houston and Dallas, and he voluntarily disclosed a pending weapons charge against him in Dallas. Finally, Posse's undisputed testimony was that Cockerham consented to the search. Consent to search, freely and voluntarily given, is a recognized exception to the requirement of both a warrant and probable cause for a valid search. // Because we find that the trial court did not abuse its discretion in denying Cockerham's motion to suppress, we overrule point of error three.

In point four Cockerham contends that the trial court erred in denying his motion for instructed verdict. In addition to the sufficiency of the evidence issue already addressed in point one, he also contends under this point that the State failed to prove that the controlled substance was cocaine. As previously discussed, Henry Amen, a chemist with the Department of Public Safety, identified the controlled substance as 1000 grams of cocaine hydrochloride, from which crack cocaine is made. Because, viewed in the light most favorable to the verdict, any rational trier of fact could have found, beyond a reasonable doubt, that the controlled substance possessed by Cockerham was cocaine, we conclude that the trial court did not err in denying his motion for instructed verdict. // Accordingly, we overrule point of error four.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 11, 1994

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