Joseph Montez Brandyburg v. The State of Texas--Appeal from 26th District Court of Williamson County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-140-CR
JOSEPH MONTEZ BRANDYBURG,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

 
NO. 93-656-K368, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of delivering cocaine and assessed punishment at imprisonment for twenty-five years. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, 481.112, 1989 Tex. Gen. Laws 2230, 2935 (Tex. Health & Safety Code Ann. 481.112, since amended). We will affirm.

On August 11, 1993, undercover officer Vernon Matthews purchased two rocks of crack cocaine in Taylor from a man he knew as "Joe." Matthews identified appellant at trial as the man who sold him the cocaine. The unlawful delivery was videotaped. Taylor police officer James Carmona, who had known appellant for five years, testified that the man shown on tape delivering the cocaine is appellant. An assistant principal at Taylor High School, who had known appellant for four years, and appellant's probation officer, who had known him for two years, also testified that the man videotaped selling cocaine to Matthews is appellant. The videotape was played at trial.

Appellant's first point of error is that the evidence is legally insufficient to sustain the conviction. Appellant's argument in support of this point is, in essence, an attack on the credibility of the State's identification witnesses. The credibility of the witnesses and the weight to give their testimony are questions for the trier of fact at trial. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). The jury obviously believed the State's witnesses and disbelieved appellant's alibi witness. Viewing the evidence in the light most favorable to the verdict, we believe a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Point of error one is overruled.

In point of error two, appellant contends the district court erred by admitting in evidence an oral statement appellant made to his probation officer, Tyrone Hobson. During cross examination, Hobson had been asked by defense counsel if, in the two years he had known appellant, "you ever heard that he was involved in drugs." Hobson said, "No." On redirect, and over appellant's objection, Hobson testified that on October 26, 1993, appellant told him he "had been selling" drugs. Appellant's brief cites no authority and gives no reason why the evidence in question was inadmissible. At trial, appellant's objection was that the statement was not in writing. This objection was properly overruled, as there is nothing in the record to indicate that appellant's statement to Hobson was the product of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, 5 (West 1979). The second point of error is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 25, 1995

Do Not Publish