Asif Zubair Chaudhry 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. 3-91-576-CR
ASIF ZUBAIR CHAUDHRY,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 40,286, HONORABLE DON HUMBLE, JUDGE PRESIDING

After the jury found appellant guilty of the offense of possession of a controlled substance, cocaine, in an amount of twenty-eight grams or more but less than four-hundred grams, the court assessed punishment at ten years' confinement. See Tex. Health & Safety Code Ann. 481.102(3)(D) & 481.115(C) (1992).

In a single point of error, appellant asserts the court erred in refusing his requested charge on possession of less than twenty-eight grams of cocaine, leaving the jury no alternative but to convict for the greater charge or acquit. We will reverse the conviction and remand the cause.

It is undisputed that appellant timely requested a charge on the lesser included offense of possession of less than twenty-eight grams of cocaine. A two-step analysis is utilized in determining whether a charge on a lesser-included offense is required. The lesser included offense must be included within the proof necessary to establish the offense charged. Additionally, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. See Mitchell v. State, 807 S.W.2d 740, 741 (Tex. Crim. App. 1991); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). If evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the court's charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex. Crim. App. 1986). The credibility of the evidence and whether it conflicts with other evidence must not be considered in deciding whether the charge on the lesser included offense should be given. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). Regardless of the strength or weakness of the evidence, if any evidence raises the issue that defendant was guilty only of the lesser offense, then the charge must be given. Sanders v. State, No. 069-90 (Tex. Crim. App., May 13, 1992).

Officer Michael Miller of the Temple Police Department testified that he found appellant in a state of intoxication in a parked car on the shoulder of the road on May 4, 1991. Miller arrested appellant for the offense of public intoxication. An inventory of the contents of the vehicle revealed a small brown paper bag containing two small plastic bags. Miller related that the plastic bags contained some kind of off-white substance, "one appears to be in a cookie shape and the other appears to be in the shape of several pebbles or rocks." Before appellant was booked into jail, a small metal pipe believed to be a crack cocaine pipe was found on his person.

Joe Budge, a chemist with the Department of Public Safety, testified that the bags contained substances known as crack cocaine. The small "rocks" in one of the bags weighed fourteen-point-two-one grams and the contents of the larger bag weighed twenty-one-point-two-six grams, making a total weight of thirty-five-point-four-seven grams.

Appellant testified that he had a cocaine habit. On May 2, 1991, he took Reggie Davis, a drug dealer, to Houston to purchase cocaine. Davis went to purchase cocaine for distribution and it was agreed that he would purchase cocaine for appellant's personal use. After Davis made the purchase, they returned to Temple. Davis gave him a little piece of cocaine "you could break into four or five small pieces." Upon arrival in Temple, appellant dropped Davis off at his house and went to his home without noticing that Davis had left his cocaine in the car. Prior to becoming intoxicated the following day, appellant went by his store where he learned that Davis had been there two or three times that day to see him. Appellant related that he had been having difficulty with his wife and decided to leave town the next morning. Believing that he was too intoxicated to drive, appellant parked his car on the side of the road. He denied having ever purchased or possessed the quantity of cocaine that forms the basis of the charge in this cause. Appellant further denied knowing that the cocaine was in his car.

James Kline, Commander of the Organized Crime Unit of the Temple Police Department, testified that appellant told him that he gave Davis four-hundred dollars to purchase cocaine for him. Appellant further advised Kline that Davis purchased cocaine for both of them and that they smoked some of it on their return trip. Kline stated that twenty-eight grams of cocaine sells for four hundred to four hundred fifty dollars in Houston. He understood appellant to say that the entire purchase made by Davis was kept together and that appellant was going to get his portion the next day. Kline estimated the value of thirty-five and a half grams of cocaine to be of a street value in Temple of thirty-five hundred dollars. He recognized Davis to be a main dealer in narcotics.

The proof of possession of less than twenty-eight grams of cocaine differs from the offense charged only in that less than all the facts are required to be proven. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (1981). Patently, the first prong of the two-step analysis, requiring that the lesser included offense must be included within the proof necessary to establish the offense charged, is met.

In determining whether appellant comes within the second prong requiring that there be some evidence, if guilty, he was only guilty of the lesser-included offense, we note that appellant admits that a portion of the cocaine purchased belonged to him. His statement to Kline reflects that the entire purchase, including Davis's and appellant's portion, was kept together. Testimony was introduced that Davis gave appellant some rocks on the return trip from Houston, they smoked some of it, and Davis left his portion of the cocaine in the car. The seized cocaine was in two packages, each package weighing less than twenty-eight ounces. The testimony of Kline that twenty-eight grams of cocaine sells for four hundred to four hundred fifty dollars in Houston raises some uncertainty as to whether appellant received twenty-eight or more grams for the four hundred dollars he gave Davis since the largest amount of cocaine appellant could have received for his expenditure was twenty-eight grams. The evidence could have been interpreted to mean that only one of the bags belonged to appellant or that a portion of his cocaine was smoked on the return trip. Kline's testimony that appellant told him that Davis was going to pick his portion up the next day tends to support the first hypothesis. Additionally, the testimony that Davis gave appellant a small amount of cocaine raises the inference that this amount constituted a portion or all of his purchase.

Because the evidence is subject to different interpretations, and raises the issue that appellant may have possessed less than twenty-eight grams of cocaine, appellant's requested charge should have been given. The trial court erred in refusing to charge on the lesser included offense of possession of cocaine in an amount less than twenty-eight grams.

If objection to the error in the charge is timely made, reversal is required if the error is calculated to injure the rights of the defendant. Stated another way, there must be some harm to the accused. See Mitchell, 807 S.W.2d at 742. The appellant was harmed in that the jury was not allowed to consider the lesser-included offense. Id.

We reject the State's argument that under the law of parties, the appellant would be guilty as a party to the larger amount purchased by Davis. The court did not charge on the law of parties. Where the issue is raised by the evidence that the conduct of a defendant, in and of itself, is not sufficient to sustain a conviction, and the State's case is dependent in part upon the conduct of another, the law of parties must be submitted by the court in its charge. Jimenez v. State, 727 S.W.2d 74, 76 (Tex. App. 1987, pet. ref'd); Gilmore v. State, 666 S.W.2d 136, 156 (Tex. App. 1983, pet. ref'd). It follows that under the charge given, the appellant must have been found guilty on the proof presented against him. Jimenez, 727 S.W.2d at 76.

The judgment is reversed and the cause remanded.

 

Tom G. Davis, Justice

[Before Chief Justice Carroll, Justices Aboussie and Davis*]

Reversed and Remanded

Filed: August 26, 1992

[Do Not Publish]

 

* Before Tom F. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).