323 S.W.3d 893 (Tex.Crim.App. 2010), PD-0210-09, Brooks v. State
| Citation | 323 S.W.3d 893 |
| Opinion Judge | HARVEY, J. |
| Party Name | Kelvin Kianta BROOKS, Appellant, v. The STATE of Texas. |
| Attorney | Walter M. Reaves, Jr., West, for Appellant. John R. Messinger, Asst. Crim. D.A., Waco, Jeffrey L. Van Horn, State's Attorney, Austin, for State. |
| Judge Panel | HERVEY, J., announced the judgment of the Court and delivered an opinion in which KELLER, P.J., KEASLER, and COCHRAN, JJ., joined. COCHRAN J., filed a concurring opinion in which WOMACK, J., joined. PRICE, J., filed a dissenting opinion in which MEYERS, JOHNSON, and Holcomb, JJ., joined. WOMACK, ... |
| Case Date | October 06, 2010 |
| Court | Texas Court of Appeals, Texas Court of Criminal Appeals |
Page 893
Rehearing Denied Nov. 17, 2010.
Page 894
OPINION
We granted discretionary review in this case to address, among other things, whether there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia 1 and a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both standards.2 Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is required to defer to a jury's credibility and weight determinations.3 In Clewis, this Court adopted a factual-sufficiency standard, which is supposed to be distinguished from a Jackson v. Virginia legal-sufficiency standard primarily by not requiring a reviewing court to defer to a jury's credibility and weight determinations.4 But then Clewis contradicted itself by also requiring a reviewing court to apply this standard with deference to these jury determinations " so as to avoid an appellate court's substituting its judgment for that of the jury." 5 After having made several attempts to " clarify" Clewis in part to resolve this fundamental contradiction, we eventually came to realize that the Clewis factual-sufficiency standard is " barely distinguishable" from the
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Jackson v. Virginia legal-sufficiency standard.6 We now take the next small step in this progression and recognize that these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both. We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.
The record reflects that, in cause number 10-07-00309-CR, a jury convicted appellant of possessing with intent to deliver more than four but less than 200 grams of crack cocaine and sentenced him to 25 years in prison. Appellant claimed on direct appeal that the evidence is legally and factually insufficient to support the intent-to-deliver element of this offense.
The evidence shows that two police officers went into a bar to investigate a report that someone matching appellant's description was there with a gun. When the officers asked appellant to step outside, appellant ran and threw two baggies towards a pool table just before one of the officers tased him. One of the baggies contained a small amount (about 3 grams) of marijuana. The other baggie contained one baggie holding 4.72 grams of crack cocaine and another baggie holding six ecstasy tablets that weighed 1.29 grams.7 Appellant also had a cell phone and, according to one of the officers, " a couple of dollars." 8 Appellant did not appear to be under the influence of narcotics, and he was not in possession of any drug paraphernalia that could have been used for smoking crack cocaine. The police did not find a gun. The police gave appellant's cell phone and money to an acquaintance of appellant's before they took appellant to jail.
An experienced Waco Police Department drug-enforcement investigator (Thompson) testified that the bag containing the 4.72 grams of crack cocaine contained " two larger size rocks and then maybe a smaller one" and a useable amount of " crumbs." He testified that each of the two large rocks weighed at least two grams and the other one weighed " a gram and a half or something like that." Thompson testified that " he would say" that 4.72 grams was a " dealer amount," which could have been cut up into 23 or 24 rocks. He testified that 4.72 grams of crack cocaine is worth about $470.
Thompson stated that a " typical quantity" that a dealer would have would be more than two rocks and that he " would think" that someone with more than a gram would be a dealer. Thompson testified that it is not " typical" for drug users to be in possession of a large amount of drugs and that he has " not run across many people that are [crack cocaine] users that have more than one to two rocks" because they are going to " smoke it as soon as [they] can get it." He also testified that " most" crack cocaine users " typically"
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would have some type of paraphernalia " to smoke the crack with" and that " [t]ypically dealers don't have crack pipes because it's not really common for them to use their product that they are selling." For example, Thompson testified:
Q. [STATE]: Okay. So if somebody had approximately 4.72 grams and about three or four rocks and some crumbs, is that a dealer amount or user amount?
A. [THOMPSON]: I would say that's dealer amount.
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Q. So if he's got 4.72 grams-
A. I would think they were a dealer.
Q. Okay. I'm going to go-oh, you said that there are some other things that you would look for to see if somebody was dealing as opposed to using the drugs. What are some of those things that you would look for?
A. In my experience, and we've come across people that are just possessing crack to use it. They usually have what is called a crack pipe or some type of heating element to heat the crack up with. Most of the people that we've come across out in the field that smoke crack have a crack pipe somewhere or have some brillo which you use inside of your crack pipe as a filter to keep from inhaling the whole piece of crack up when you're smoking it. Typically dealers don't have crack pipes because it's not really common for them to use their product that they are selling. You can't make any money if you're hooked on your own product. So typically a user is going to have some type of instrument to smoke the crack with, and, like I said before, they normally don't have more than one or two because they are smoking. You don't save crack. It's not like a rainy day type of deal. You want to smoke it as soon as possible.9
On cross-examination, Thompson described other factors, none of which are present in the record in this case, indicating that a person could be a dealer: (1) possession of five, ten, or twenty dollar bills; (2) names in the person's cell phone; (3) possession of some document identifying who owes what; (4) possession of a weapon; or (5) others observed the person trying to sell drugs. Thompson also acknowledged that a person could possess 4.72 grams of crack cocaine for personal use.
Appellant testified that he possessed only the baggie containing the small amount of marijuana. He denied possessing the baggies containing the crack cocaine and the ecstasy pills. Appellant also admitted that he has two prior convictions for possession of cocaine and another prior conviction for possession with intent to deliver cocaine. The jury was instructed in the charge that it could have considered these extraneous offenses " in determining the intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident by the Defendant, if any, in connection with the offenses, if any, alleged against him in the indictment in this case, and for no other purpose."
During closing jury arguments, the State relied primarily on Thompson's testimony to argue that appellant possessed the crack cocaine with the intent to deliver it:
[STATE]: There is no evidence at all, none, that he was a user. What does that tell you? What does that tell the reasonable person? I'm going to go to
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Investigator Thompson right now because he kind of ties in with that. The dealer level back on the crack, and I'm bouncing back and forth because it's basically the same charge. Just with crack we have added the element of intent to deliver. But Investigator Thompson testified that a typical user, one, two rocks, max, because what do they do when they get it? They want to smoke it because they are craving this drug, because they have to use it. They don't hold it for a rainy day. They don't keep it for later. They use it then. And when they use it, they have paraphernalia on them. They don't carry a couple of rocks and then go home and find their stuff. They have it all on their person. No drug paraphernalia, no brillo pad, no push pipe, no push rod, no crack pipe, nothing. Again, because he's not a user. There is no evidence of that. In fact, the amount that he had is dealer amount. This is 23 to 25 crack rocks. It's way more than one or two for a user. 4.72 grams doesn't really seem like a lot in here. It's a lot on the street. He had $500, $600 worth of drugs on him that night.
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About him being a user and not a dealer, he got on the stand. Did he tell you, " I'm a user, not a dealer" ? He didn't say that. That would have been the perfect chance for him to say that. Does he look like a user? You know we had somebody in voir dire say, " I've seen crack users, and I can tell when I see them." Did he have a pipe on him? No. What else did he not have? You know, no pipe. He had some money on him, not a lot because he hadn't started selling yet. He still had his whole 25-rock stash. He hadn't started selling yet. He had the cell phone. Yeah, it would have been nice to get the names out of the cell phone and see if they match up with other drug dealers, you know, that we know. The police, they were being nice. They gave the phone to his sister and let her take it home. So are we going to blame the cops for being a little too nice that night, even after he had cussed at them and resisted, swung at them, kicked...
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