Roy Brown Howard v. The State of Texas--Appeal from 27th District Court of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-89-177-CR
ROY BROWN HOWARD,
APPELLANT
vs.
THE STATE OF TEXAS,

APPELLEE

 
NO. 3-89-181-CR
JORY WAYNE PULLEN,
APPELLANT
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NOS. 37,821, 37,820, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

These are appeals from convictions for possession of cocaine of less than twenty-eight grams with intent to deliver. The appellants were separately indicted but jointly tried. Following the jury's verdicts of guilty, the court assessed punishment. Appellant Howard entered a plea of "true" to a prior conviction for delivery of marihuana. His punishment was assessed at twenty years' imprisonment. Appellant Pullen pleaded "true" to the three prior convictions alleged for enhancement of punishment. The court assessed his punishment at forty years' imprisonment.

Each appellant advances a single point of error claiming that the evidence is insufficient to support his conviction. We will affirm the judgments of conviction.

Killeen police officer Dennis Baldwin testified that about 10:00 p.m. on January 20, 1989, he received information from a confidential informant, whom he knew personally and had worked with previously. The informant told Baldwin that two black males in their "late twenties" were selling crack cocaine in downtown Killeen; that they were in a brown late model vehicle bearing Texas license plates 195 RPP; that one of the men was wearing a running suit with "cadillac" written on the side, and said he was from Waco; that this man offered to sell cocaine to the informant. Baldwin also received the information that the two men "were going to go to some of the local clubs in the area."

Baldwin, who had three years' experience with narcotic related offenses, went with officer Kenneth Olson to the downtown area. About 10:45 p.m., the officers found the described vehicle, a Chrysler LeBaron, parked in front of the National Cafe, a local club. Baldwin described the area as a "high crime area" known for narcotics trafficking. The officers parked their vehicle 150 to 200 yards away. Partially through binoculars, the officers observed the appellants in and around the car bearing license plates 195 RPP. People were observed coming up to the two men, staying a short time and leaving. Baldwin related that at the distance he was unable to see any exchange of money or "dope," but based on his experience and training, it was his opinion "they were dealing crack cocaine." Baldwin related the surveillance continued for approximately an hour, and the appellants were in sight the entire time except when the appellants went inside and once when they were "up next to a car."

Baldwin testified that the two men left in the brown car with appellant Pullen driving and with appellant Howard riding in the passenger seat. The officers followed and with backup assistance stopped and arrested the appellants. A search of Pullen revealed one 0.02 gram rock of crack cocaine. There was also on his person an empty film canister. Baldwin explained that such canisters were commonly used to carry crack cocaine. In Pullen's shirt pocket the officers found $197.41. The officers also found four $20.00 bills in other pockets of Pullen's jumpsuit. Baldwin testified that $20.00 bills were commonly used in the sale of crack cocaine rocks. Under the jumpsuit, Pullen was wearing a running suit with "cadillac" written on it. Pullen stated he was from Waco and was unemployed.

Officer Kenneth Olson generally corroborated Baldwin's testimony. After the stop and arrest, Olson searched Howard. Two rocks of crack cocaine, later shown to weigh 0.05 grams, were found on Howard's person. He had no money and told the officers he was unemployed. The chain of custody was established, and the chemist testified the chemical analysis showed the substance submitted was crack cocaine.

Pullen did not testify. Howard testified on direct examination that he had received an undesirable discharge from the Army, had been convicted of delivery of marihuana, and had served time in prison. He also related other arrests in California and Texas, including a 1987 arrest for possession of marihuana in Bell county. Howard related that he had been watching television in a washateria in the same building as the National Cafe, that he only asked Pullen for a ride to his home, that he had not been with Pullen earlier, and did not know Pullen had any cocaine on him. He stated that he had earlier been given the two rocks of cocaine by a man at Motel 7, whose name he did not know but whom he "had seen around." Howard testified that Pullen was unaware that he was in possession of any cocaine.

The appellants do not challenge the search and seizures. They claim the evidence was insufficient to support their convictions, particularly the essential element of intent to deliver. The elements of the offense charged against each appellant was that he (1) intentionally or knowingly (2) possessed (3) cocaine (4) with intent to deliver it. Gonzales v. State, 761 S.W.2d 809, 814 (Tex. App. 1988, pet. ref'd). The trial court charged in accordance with the allegations of the indictment and also submitted the cases upon the law of parties in each jury charge. Tex. Penal Code Ann. 7.02 (1974). The burden of proof was upon the State to prove each element of the offense beyond a reasonable doubt. Tex. Penal Code Ann. 2.01 (1974); Tex. Code Crim. Proc. Ann. art. 38.03 (Supp. 1992). That burden can be sustained by either circumstantial or direct evidence. Maynord v. State, 334 S.W.2d 822, 824 (Tex. Crim. App. 1960); see also Taylor v. State, 684 S.W.2d 682 (Tex. Crim. App. 1984); Indo v. State, 502 S.W.2d 166 (Tex. Crim. App. 1973).

There is undisputed direct evidence that each appellant had crack cocaine in his possession. Each appellant insists, however, the evidence is insufficient to show the possession was with intent to deliver. After receiving information from an informant that certain described men in a given car were selling cocaine in downtown Killeen, the officers were able to locate the two men. They were outside a local club in a high crime area where narcotic trafficking commonly occurred. The men were under surveillance for approximately an hour. Individuals were constantly coming up to both of them, staying a short time and leaving. Officer Baldwin expressed the opinion the men were "dealing" crack cocaine. At the time of their arrest, both appellants had crack cocaine in their possession, albeit small amounts. In addition, there was found on appellant Pullen's person a film canister and a number of $20.00 bills, both of which are commonly used in the sale of crack cocaine. No money was found on appellant Howard, but he had been in Pullen's company for the time he was under surveillance by the officers and was seen being approached by various individuals who stayed only a short time.

Intent can be inferred from acts, words and conduct by the accused. Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. 1987); Kimes v. State, 740 S.W.2d 903 (Tex. App. 1987, pet. ref'd); Creel v. State, 710 S.W.2d 210 (Tex. App. 1986), aff'd, 754 S.W.2d 205 (Tex. Crim. App. 1988). It is a question of fact to be determined by the trier of facts from all the circumstances and facts in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1976); Carter v. State, 753 S.W.2d 432 (Tex. App. 1988, pet. ref'd). As a general rule, any ultimate fact may be established by circumstantial evidence from which a jury may draw reasonable inferences. Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980). Participation in a criminal enterprise may be inferred from circumstances and need not be shown by direct evidence. Markham v. State, 761 S.W.2d 553 (Tex. App. 1988, no pet.); Palez v. State, 693 S.W.2d 761 (Tex. App. 1985, no pet.). Circumstantial evidence may be used to prove one is a party to an offense. Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985).

Jurors are triers of the fact and the judges of the credibility of the witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (1979). The jurors may accept or reject any part of or all the testimony given by the witnesses. Beardsley v. State, 738 S.W.2d 681, 683 (Tex. Crim. App. 1987).

The standard for review of the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of the facts could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim. App. 1984). The standard is applicable to both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986); Christian v. State, 686 S.W.2d 930, 934 (Tex. Crim. App. 1985); Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984).

A conviction based upon circumstantial evidence, however, cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. See Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989); Burns v. State, 676 S.W.2d 118, 120 (Tex. Crim. App. 1984). Any alternative hypotheses, however, must be reasonable, consistent with the facts proved and the circumstances, and not out of harmony with the evidence. Autry v. State, 626 S.W.2d 758, 761 (Tex. Crim. App. 1982), cert. denied, 459 U.S. 882 (1982); see also Brown v. State, 748 S.W.2d 258, 262 (Tex. App. 1988, no pet.). (1)

Applying the "rationality test," we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged against each appellant, keeping in mind that the evidence must be viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury. See United States v. Mixon, 816 F.2d 1022, 1029 (5th Cir. 1987); United States v. Blank, 653 F.2d 989, 995 (5th Cir. 1981), cert. denied, 454 U.S. 1055 (1981). The single point of error advanced by each appellant is overruled.

The judgments of conviction are affirmed.

 

John F. Onion, Jr., Justice

[Before Justices Powers, Jones and Onion*)

Affirmed

Filed: June 10, 1992

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003 (1988).

1.

1 See Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) (The reasonable hypothesis construct is now abolished, but the Geesa opinion is not to be applied retroactively.).