Knight v. State

• Decision Date: 06 November 2002
• Docket Number: No. 10-01-172-CR.,10-01-172-CR.
• Citation: 91 S.W.3d 418
• Parties: Genary KNIGHT a/k/a Genary Lois Bailey, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

91 S.W.3d 418

Genary KNIGHT a/k/a Genary Lois Bailey, Appellant, v. The STATE of Texas, Appellee.

No. 10-01-172-CR.

Court of Appeals of Texas, Waco.

November 6, 2002.

COPYRIGHT MATERIAL OMITTED

John A. Kuchera, Waco, for Appellant.

Kathryn J. Gilliam, County Attorney for Falls County, Marlin, for Appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury convicted Genary Knight a/k/a Genary Lois Bailey ("Knight") of delivery of less than one gram of cocaine by offer to sell. The jury found an enhancement allegation true and assessed Knight's punishment at ten years' imprisonment and a $10,000 fine. Knight presents five issues in which she contends: (1) the evidence is legally insufficient to support her conviction; (2) the evidence is factually insufficient to support her conviction; (3) her trial counsel rendered ineffective assistance during the guilt-innocence phase; (4) her sentence is void; and (5) her trial counsel rendered ineffective assistance during the punishment phase.

BACKGROUND

Undercover officer John Anastacio and "cooperating individual"¹ Jimmy Bland drove to "The Tree"² in Rosebud to make a drug buy. Bland saw Knight, whom he knew, and called her to the car. According to Anastacio, Knight asked whether they "wanted to have sex," to which he replied in the negative. Anastacio told her that they wanted "something to smoke." She asked if they wanted "rock cocaine or crack." Anastacio said he wanted a rock. She asked whether he wanted a $10 or $20 rock. He said $20.

Knight told him she needed the money. Anastacio told her he "didn't want to get ripped off." She assured him that she would not do that and that she needed the money to get the rock. Bland told Anastacio he did not think "she'd rip [them] off." Anastacio gave Knight the money. She told them to circle the block and she'd have the rock for them. Before they pulled away, she told them to drive to town then come back for the rock. They complied. When they returned, Knight was nowhere to be found.

Bland's testimony largely corresponds with Anastacio's. He testified that Anastacio and Knight discussed "[t]he purchase of crack cocaine" and that Anastacio gave her $20. He recalled that she told them to circle the block and she'd have the cocaine for them.

Knight testified that she was "really angry" on the evening in question because Anastacio and Bland had been driving around town asking for her. She said that she knew both of them and knew that Anastacio was an, officer. She described her encounter with them thus:

They said come here, and I said who is that? He said you know me, Jimmy Bland from Marlin. He said — no, he said my old buddy over here wants to know where I can get some stuff at, and I said what? What are you talking about, and he said some stuff and a girl, and I said what are you talking about? He said marijuana and crack, can you go get it for us? I said give me the money, and he gave it to me, and I left.

Knight stated that she took the money because she was angry with them and that she never intended to give them any drugs. She testified that Bland handed her $60: $20 "for a girl" and $40 "for some stuff."

SUFFICIENCY OF THE EVIDENCE

Knight contends in her first and second issues that the evidence is legally and factually insufficient to sustain her conviction because: (1) the State failed to present evidence to corroborate Anastacio's testimony regarding her offer to sell him cocaine; and (2) the State failed to present sufficient evidence to prove that she actually intended to sell cocaine.

STANDARDS OF REVIEW

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.App.2000).

In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim.App.2001).

We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim.App.1997).

CORROBORATION

When the State alleges delivery of a controlled substance by offer to sell,³ "proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree." TEX. HEALTH & SAFETY CODE. ANN. § 481.183(a) (Vernon 1992). The corroboration required by section 481.183(a) does not equate to that required for corroboration of accomplice testimony. See Vivanco v. State, 825 S.W.2d 187, 191 (Tex.App. — Houston [14th Dist.] 1992, pet. ref'd); Garber v. State, 671 S.W.2d 94, 99-100 (Tex. App.-El Paso 1984, no pet.). Our research has revealed at least three types of evidence which can satisfy the corroboration requirement:

• evidence that the offeror had possession of or access to the controlled substance offered; see Evans v. State, 945 S.W.2d 259, 261 (Tex. App. — Houston [1st Dist.] 1997, pet. ref'd); Vivanco, 825 S.W.2d at 192; Pena v. State, 776 S.W.2d 746, 749 (Tex.App. — Corpus Christi 1989, pet. ref'd); Garber, 671 S.W.2d at 98;

• testimony of witnesses to the transaction other than the "offeree"; see Vivanco, 825 S.W.2d at 192; Pena,, 776 S.W.2d at 749; Taylor v. State, 674 S.W.2d 323, 331-32 (Tex.App. — Waco 1983), pet. dism'd, improvidently granted, 770 S.W.2d 778 (Tex. Crim.App.1985); but cf. Iniguez v. State, 835 S.W.2d 167, 172 (Tex. App. — Houston [1st Dist.] 1992, pet. ref'd); (testimony by surveillance officer who saw but did not hear transaction did not corroborate offer to sell); or

• an electronic recording of the transaction; see Hernandez v. State, 956 S.W.2d 699, 704 (Tex.App. — Texarkana 1997, no pet.); but cf. Douglas v. State, 688 S.W.2d 687, 689 (Tex. App. — Texarkana 1985, pet. ref'd) (still photograph did not corroborate offer to sell because it "proved only that [offeror] was present").

According to Knight's counsel, "the actual presence of drugs (or something purporting to be drugs) is present as corroboration in every published offer-to-sell case, except for two." Knight contends that this type of corroboration is virtually indispensable. However, the Court of Criminal Appeals has plainly stated that this is unnecessary.

[W]hen delivery is by offer to sell no transfer need take place. A defendant need not even have any controlled substance. All he need do, as appellant did, is state that he had a hundred dollar bag of heroin he would sell to the officers. The offense is complete when, by words or deed, a person knowingly or intentionally offers to sell what he states is a controlled substance.

Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim.App.1986) (first emphasis added) (footnote omitted); accord Hernandez, 956 S.W.2d at 703-04; Francis v. State, 890 S.W.2d 510, 513 (Tex.App. — Amarillo 1994, pet. ref'd).

Knight contends that Bland cannot corroborate Anastacio's testimony because they are co-offerees. See Douglas, 688 S.W.2d at 688. In Douglas, the Texarkana Court concluded without elaboration that the State had failed to establish the necessary corroboration "because no one other than the undercover officers (who were the offerees) heard the offer to sell." Id. The court provided a limited recitation of the pertinent facts:

Douglas offered to sell 1,000 methaqualone tablets to undercover officers in Titus County. Douglas met with the officers in a parking lot on that day and actually delivered 1,000 pills which closely resembled methaqualone. He was paid $3,000.00 for the, pills.

Id. The court did not discuss the varying roles (if any) the different officers played during the course of the transaction under review.

Conversely, this Court and others have differentiated between an undercover officer who actually strikes a bargain with a seller and others involved in the transaction. See Vivanco, 825 S.W.2d at 192; Pena, 776 S.W.2d at 749; Taylor, 674 S.W.2d at 331-32. In Taylor, we observed:

The record does not show that Ferris' participation in the transaction extended to anything more than being the person who brought the buyer and seller together. The evidence does not show, for example, that Ferris attempted to purchase the drugs from Ramage in order to resell them to Powell or to any other person; however, the evidence is sufficient to show that Ferris, as an informant, was facilitating the drug buy for Powell and that Ramage, Weber and Appellant were aware that Powell had the money and was the intended...