Ronnie Dustin Harrison v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-05-00371-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RONNIE DUSTIN HARRISON, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Ronnie Dustin Harrison appeals his conviction for delivery of a controlled substance. In three issues, Appellant challenges the admission of hearsay statements and the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

Background

Appellant was charged by indictment for delivery of a controlled substance, namely cocaine, in an amount less than one gram. He pleaded not guilty and elected to have a jury decide his guilt or innocence.

At trial, the State called Mike McClain, a criminal law enforcement sergeant with the Texas Department of Public Safety Narcotics Service. McClain testified that on August 12, 2004, he and Thomas Morgan, a cooperating individual (CI),1

were attempting to buy crack cocaine from street dealers in Crockett, Texas. As they drove around town in an undercover DPS vehicle, they saw Appellant riding a horse. The CI knew Appellant and spoke to him from the vehicle, introducing McClain to him as a friend. The CI exited from the vehicle and spoke with Appellant. He returned to the vehicle and McClain gave impressed 2 money to the CI. They both got out of the vehicle and walked up to Appellant, who was still on horseback. The CI and Appellant exchanged the money for the drugs, two rocks of crack cocaine. McClain and the CI then returned to the truck where the CI handed the drugs to McClain.

Karen Shumate, a lab criminalist from the Texas Department of Public Safety (DPS), testified that the substance McClain purchased from Appellant contained cocaine. Shumate said the amount of crack cocaine was 0.32 grams or approximately .01 ounce. Her testimony was based on the report written by Kevin Minor, the criminalist who performed the tests. Minor no longer worked for DPS.

Paul Thomas Hopson, sergeant investigator for the Texas DPS Narcotics Service, testified that he and Dustin Ramos were acting as backup for McClain. They parked across the street and witnessed McClain and the CI drive up and speak to Appellant on horseback. However, Hopson was unable to see the actual transfer of drugs and money from his position. Dustin Ramos, an investigator for the Deep East Texas Narcotic Task Force, gave a similar account of what they saw.

Morris Luker, a peace officer for Houston County Sheriff s Office, testified that he twice attempted to serve a subpoena on the CI ordering him to appear at Appellant s trial. He was unsuccessful in his efforts, saying that the CI s neighbors had not seen him in several weeks.

At the conclusion of the guilt/innocence phase, the jury found Appellant guilty. After hearing evidence and argument from the parties, the jury sentenced Appellant to two years of confinement and assessed a $10,000.00 fine. This appeal followed.

Admission of Hearsay

In his first issue, Appellant complains that the trial court failed to exclude back door hearsay statements of the CI in such a manner as to effectively permit such statements to be testified to by the undercover agent.

 Standard of Review

We review the trial court s decision to admit or exclude testimony under an abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether a trial court abused its discretion, we review the trial court s ruling in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998). This standard requires an appellate court to uphold a trial court s admissibility decisions when they are within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391 (op. on reh g).

Discussion

Hearsay is an out of court statement offered at trial to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible, absent a rule-based or statutory exception to the hearsay rule. Tex. R. Evid. 802; see Philpot v. State, 897 S.W.2d 848, 851 (Tex. App. Dallas 1995, pet. ref d). A statement need not be quoted directly to constitute a violation of the hearsay rules. See Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). Back door hearsay may violate the rules of evidence depending on how strongly the content of the out-of-court statement can be inferred from the context. 3 Id.

The trial court held a hearing outside the jury s presence to determine what testimony would be allowed. McClain summarized his testimony:

[The CI] said he knew who [Appellant] was, and he was on the horse, and that he could buy from him. That is what he basically said. And I pulled over there . . . . [The CI] told [Appellant] that I was a friend. . . . So we talked for a second. Then he got out of the truck . . . and he walked over to him. And I backed up off of the road. And then they talked. And then [the CI] [came] back and sat down in the truck. . . . He told me that [Appellant] did not know who I was, so he wouldn t deal with me. So I [gave] him the money. And he got out and walked back up to [Appellant]. And I got out and walked over there. And I shook hands with him on the horse. And I stood on the left side of the horse, and [the CI] stood on the right side of the horse. And they exchanged the money with the drugs, which was two pieces of crack cocaine. Then we went back and sat down in the truck. And [the CI] had the cocaine in his hand. He handed it to me, and I put it in my pocket.

The trial court made the following ruling:

I am going to let some in, and I am not going to let some in. I am going to let in the informant saying that he knew who [Appellant] was. And I am going to give an instruction that the jury cannot consider that, but that it is offered for the reason of why he pulled over. The testimony that he won t buy from you or something like that is not coming in. It is hearsay. It is being offered for the truth of [the] matter asserted. The informant introduced me as so-and-so I will allow in. And then the officer can testify as to what he personally observed and why he did what he did. And if there are statements that the informant has made to him, he can say based upon conversations with the informant, I did whatever I did, and not say what the informant told you.

After the jury returned, McClain testified that the CI and Appellant conversed through the passenger-side window. . . . And the [CI] and [Appellant] talked. And he introduced me as a friend. McClain said that he gave the CI money, got out of the truck, walked up to the horse, shook hands with Appellant, saw the CI make the transaction, then went back to the truck. McClain did not say that Appellant would not sell to him because they did not know each other.

McClain primarily testified about the transaction he observed between Appellant and the CI. He also testified that the CI introduced him to Appellant as a friend. He gave no further details of any statement made by the CI. Appellant fails to state what inferences McClain s testimony creates about the substance of the CI s out of court statements. Nor do we see an inescapable inference from McClain s testimony that constitutes back door hearsay. Consequently, we conclude the admission of the challenged testimony was not error.

In one sentence, Appellant also complains that the trial court failed to give limiting instructions to the jury. An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Appellant has not presented a single argument or citation in support of his contention nor has he addressed any of the governing legal principles or applied them to the facts of this case. See King v. State, 17 S.W.3d 7, 23 (Tex. App. Houston [14th Dist.] 2000, pet. ref d) (op. on reh g). Appellant s brief merely contains a sentence stating that contrary to the trial court s earlier decision, it failed to give a limiting instruction to the jury. Conclusory statements unsupported by authority present nothing for appellate review. See id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992). Therefore, Appellant has waived the alleged error of which he now complains. We overrule Appellant s first issue.

Sufficiency of the Evidence

In his second and third issues, Appellant challenges the factual and legal sufficiency, respectively, of the evidence supporting his conviction. We will address legal sufficiency and then factual sufficiency.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Legal Sufficiency

A person commits delivery of a controlled substance when he knowingly delivers, or possesses with intent to deliver, a controlled substance. Tex. Health & Safety Code 481.112(a) (Vernon 2003). This offense is a state jail felony if the amount of the controlled substance is less than one gram. See id. 481.112(b).

Hopson and Ramos both testified that they were conducting surveillance during the buy and saw McClain and the CI talking with Appellant, who was on horseback. McClain testified that he was present and personally witnessed Appellant deliver two rocks of crack cocaine to the CI in exchange for money. A DPS lab criminalist testified that the substance contained cocaine.

Viewing all of the evidence in the light most favorable to the jury s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant intentionally and knowingly delivered cocaine in an amount less than one gram. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict. We overrule Appellant s third issue.

Factual Sufficiency

In addition to the evidence already discussed, some evidence in the record is favorable to Appellant. The record shows that neither Hopson nor Ramos was able to see the actual transfer of drugs and money between Appellant and the CI from across the road. Additionally, the recording device that was used that day did not function properly and the tape was not clear enough to be helpful. Although McClain stated that he saw the entire transaction take place, McClain also described the setting, saying that he was standing to the left side of the horse that Appellant was riding while the CI was standing to the horse s right side. However, we must consider this evidence along with the evidence that is unfavorable to Appellant.

Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. We overrule Appellant s second issue.

Disposition

Having overruled Appellant s issues one , two, and three, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered September 29, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 The State had filed a motion to revoke Morgan s probation from a misdemeanor conviction, and he was cooperating with officials in an attempt to receive favorable treatment from the State.

2 Impressed money is state money allotted for officers to use for the purchase of narcotics or to use on surveillance.

3 The case of Burks v. State, 876 S.W.2d 877, 898 (Tex. Crim. App. 1994), illustrates the dilemma where an officer does not actually testify about what he was told by the witness, but the officer's subsequent conduct may produce a strong enough inference as to the substance of the statement to present a hearsay problem. In Burks, the officer testified that he spoke to the victim and an eyewitness to the crime. Id. The State then asked, After talking to [the victim], and please let me remind you not to tell me what if anything [he] told you, did you go searching or looking for a particular description of an individual? Id. The officer responded in the affirmative, indicating that he began looking for [a] black male, somewhat smaller build than [the victim], having in his possession a black ski mask or toboggan type. Id. The officer responded in a similar manner when asked about the type of individual he began to look for after interviewing the eyewitness. Id. The inescapable inference from the officer's testimony was that the victim and the eyewitness had given him the description that the officer had related to the jury. The court of criminal appeals held that the officer's testimony was inadmissible hearsay. Id.