Curtis Lamar Hackett v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-03-00075-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CURTIS LAMAR HACKETT, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant of the second degree felony of delivery of a controlled substance, crack cocaine, in the amount of one gram or more but less than four grams. The indictment alleged two prior felony convictions for enhancement of punishment. The jury found the enhancement paragraphs to be true, and assessed Appellant s punishment at confinement for forty years. In two issues, Appellant challenges the legal and factual sufficiency of the evidence. We affirm.

Background

On an informant s tip, a Tyler Police Department Narcotics Officer Ricky Graham ( Graham ) contacted Appellant to buy $100 of crack cocaine. Appellant agreed to meet Graham to deliver the drugs at a local gas station. Other officers of the narcotics unit established surveillance of the gas station. The officers conducting the surveillance listened to the transaction in progress through an electronic transmitter Graham wore, and they also made a videotape of the purchase. Appellant got into Graham s car, took a plastic bag from his mouth containing what Graham believed to be cocaine, and gave it to Graham. Graham gave Appellant $100 for the drugs. When he returned to the police station, Graham field tested the substance. The field test indicated the substance was cocaine. Graham put the substance in an envelope and delivered it to his supervisor, Lieutenant Long ( Long ). Long transferred the sealed envelope to the Department of Public Safety ( DPS ) laboratory for analysis. Claybion Cloud ( Cloud ), a DPS chemist, tested and weighed the substance Appellant sold Graham. Cloud testified that it was seventy-five to eighty-five percent pure cocaine and weighed 1.45 grams. Cloud testified that the substance he was shown at trial did not appear to be in the same state as when he tested it nine months before.

Long and fellow Officer Mike Saxon ( Saxon ) were the surveillance officers. Long listened to the conversation between Appellant and Graham which he described as a conversation regarding the purchase of drugs. Long and Saxon were two hundred or three hundred feet away from Graham s vehicle with an unobstructed view, but Long was unable to see the exchange of the drugs for the money. The jury viewed the video, but the jury did not hear an audio recording of the transaction. Appellant did not testify or present evidence.

Standard of Review

The standard for the review of legal insufficiency claims is whether, viewing all the evidence in the light most favorable to the prosecution, any rational jury could have found all the elements of the offense proven beyond reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In conducting a factual sufficiency review, the appellate court must sustain the verdict unless a neutral review of all the evidence, both for and against the challenged finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury determination, or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Legal Sufficiency

Appellant s first issue challenges the legal sufficiency of the evidence. The elements of the offense charged in the indictment are as follows: (1) a person (2) knowingly (3) delivers (4) cocaine in the alleged amount (5) to another person. See Tex. Health & Safety Code Ann. 481.112 (Vernon 2003).

Appellant argues that the evidence is legally insufficient because there is no credible evidence aside from Graham s suspect testimony that Appellant delivered cocaine to him. Appellant contends that this, coupled with the chemist s opinion that the substance produced did not appear to be in the same state as when he tested it, demonstrates the evidence is legally insufficient. Although Appellant characterizes Graham s testimony as suspect, it is the jurors who are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).

Graham s testimony that Appellant delivered to him a substance thought to be cocaine, when considered with the chemist s testimony that the substance was cocaine in the amount alleged, constitutes legally sufficient evidence to support the conviction. Appellant s first issue is overruled.

Factual Sufficiency

In his second issue, Appellant challenges the factual sufficiency of the evidence. Since Appellant presented no contrary evidence, we must consider only if the proof of guilt is so obviously weak as to undermine confidence in the verdict.

Appellant argues that neither Long nor his partner, Saxon, could actually see the drugs pass from Appellant to Graham. Although a video was made of the purchase from two hundred or three hundred feet away, it also did not show the exchange. Although Long claimed to have listened to the conversation between Appellant and Graham about the purchase of drugs, no audio tape was introduced into evidence. Therefore, Appellant argues, Graham s testimony is unreliable. In his view, the apparently altered state of the drugs in evidence indicates that the chemist s analysis is also suspect.

Graham testified that he bought the cocaine. At least one other officer heard an electronic transmission of the purchase. The video showed Graham and Appellant meeting at the station on or about the date alleged. The chemist s analysis showed the substance purchased to be cocaine in the amount alleged. There is clearly factually sufficient evidence to support the verdict. Appellant s second issue is overruled.

Conclusion

Having overruled Appellant s first and second issues, the judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered May 28, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)