Shears v. State

• Decision Date: 28 February 1995
• Docket Number: No. 12-93-00040-CR,12-93-00040-CR
• Citation: Shears v. State, 895 S.W.2d 456 (Tex. App. 1995)
• Parties: John SHEARS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 456

895 S.W.2d 456

John SHEARS, Appellant, v.The STATE of Texas, Appellee.

No. 12-93-00040-CR.

Court of Appeals of Texas Tyler.

Feb. 28, 1995.

Kenneth Nash, Tyler, for appellant.

Edward J. Marty, Tyler, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

A jury convicted Appellant of the crime of engaging in organized criminal activity by conspiring to commit the offense of unlawful delivery of a controlled substance and sentenced him to 62 years in prison.In his first point, Appellant challenges the sufficiency of the evidence to support his conviction.In his remaining points, Appellant contends that the court erred when it: (1) failed to quash the jury panel after the State used its strikes in a discriminatory manner; (2) improperly admitted an audio tape into evidence; and, (3) failed to grant a mistrial after the prosecutor made prejudicial statements to the jury during the State's closing argument.We will affirm.

Tyler police suspected that Appellant and other co-defendants were actively selling crack cocaine from an apartment located at 1316 West First Street.As a result, several police officers began a three day covert surveillance operation in a house across the street.Officer David Spencer and Officer Reginald Conley used a video camcorder with a night-scope to tape over 10 hours of the activities that were occurring less than one hundred feet away.On the video, numerous individuals were shown swarming the yard and driveway at 1316 West First Street.These individuals approached cars and pedestrians as they lingered briefly near the apartment.During the three days, many of the same people systematically delivered an object that was exchanged for money.It is undisputed that some of these exchanges involved the sale of drugs.Undercover officers Charles Bledsoe, Carlos Samples, and Danny Alexander wore "body-mikes" and made "buys" of crack cocaine from various sellers.Alexander and Samples made two buys of crack cocaine from Appellant.All of the sellers operated out of the same apartment on West First Street and the same cars repeatedly drove through the area.

On May 23, 1993, the Tyler Police Department raided the apartment.During the search, officers seized a razor blade, a straight-shooter, a plastic bag containing a white powder residue, a medicine bottle containing five (5) rocks of cocaine, and other paraphernalia.Appellant and twenty-three (23) other individuals were later indicted for delivery of a controlled substance, as well as for participating in an organized criminal activity.The court tried Appellant along with Gregory Mumphrey, Darrell Lacy and Charles Bell.

In his first point of error, Appellant challenges the sufficiency of the evidence to support his conviction.He argues that the State offered no evidence, direct or circumstantial, to show that he and other co-defendants agreed to work within a combination to sell crack cocaine.Appellant claims that the drug activities at 1316 West First Street were too loosely knit to comprise a combination and that the dealers of cocaine were competing with each other rather than working together within a conspiracy.

In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 278161 L.Ed.2d 560(1979);Butler v. State, 769 S.W.2d 234, 239(Tex.Cr.App.1989).After reviewing all of the evidence, we will resolve all conflicts and reasonable inferences in favor of the verdict.SeeThomas v. State, 753 S.W.2d 688, 695(Tex.Cr.App.1988).This standard places full responsibility on the trier of fact to weigh the evidence, to resolve conflicts in the testimony, and to draw reasonable inferences from basic to ultimate facts.SeeJackson, 443 U.S. at 319, 99 S.Ct. at 2789.If there is evidence to establish the defendant's guilt beyond a reasonable doubt, and the jury believes the evidence, the appellate court cannot reverse the judgment on an evidence point.SeeSoto v. State, 864 S.W.2d 687, 691(Tex.App.--Houston [14th Dist.]1993, pet. ref'd).

To be convicted of engaging in an organized criminal activity, Appellant must have committed, or conspired to commit, an underlying offense with the specific intent to participate in that offense with a number of persons.SeeBarber v. State, 764 S.W.2d 232, 234(Tex.Cr.App.1988);see also, Richardson v. State, 763 S.W.2d 594, 596(Tex.App.--Corpus Christi 1988, no pet.).By definition, a person "conspires to commit" an offense when he agrees with others to engage in conduct that would constitute an offense and performs some overt act pursuant to their agreement.TEX.PEN.CODE ANN. § 71.01(Vernon 1994).Evidence of the defendant's conduct, systematic methods of operation, together with evidence of group participation in joint activities, supports a conviction.United States v. Ochoa, 609 F.2d 198(5th Cir.1980);Kennard v. State, 649 S.W.2d 752, 764(Tex.App.--Fort Worth1983, pet. ref'd).Appellant's intent can be determined from his words, acts, and conduct.Childress v. State, 807 S.W.2d 424, 435(Tex.App.--Amarillo 1992, no pet.).An agreement may be inferred from the acts of the parties.Id.

Because of the nature of the offense of working within a conspiracy, direct evidence is rarely available, and the State must rely on circumstantial evidence to prove the essential elements of the offense.Nickerson v. State, 686 S.W.2d 294, 297(Tex.App.--Houston [14th Dist.]1985, pet. ref'd).In a circumstantial evidence case, it is not necessary that every fact point directly and independently to the guilt of the accused.Hinkle v. State, 779 S.W.2d 504, 507(Tex.App.--Beaumont1989, pet. ref'd).

In this case, nine police officers testified at the trial.During the three day surveillance, each officer had been assigned to a task that was compatible with the officer's specific area of expertise.One officer operated the video tape machine, one officer used binoculars to identify the defendants, three officers bought cocaine from the defendants, and two officers served as "back-ups" to the officers who were making the "buys."Several officers participated in searching the apartment, and one officer analyzed the chemical composition of the substances that were confiscated.Undercover Officer Bledsoe testified that on May 22, 1993, he and Officer Alexander drove up to 1316 West First Street and that Appellant was the first of several sellers who approached their truck.After Bledsoe told Appellant that he wanted to buy some cocaine, Appellant told Bledsoe: "I'll go get it and be right back.I am in the business."Although Appellant went directly into the apartment, he did not return with cocaine for Bledsoe.However, Appellant did sell a rock of cocaine to Alexander minutes later.Undercover Officer Samples testified that later that same evening, Appellant"walked over and placed ... his right hand into [Samples'] vehicle.[Appellant] showed [Samples] one rock of cocaine.[Samples] gave [Appellant] a--twenty-dollar bill, and [Appellant] turned and walked away" without saying a word.Both of these transactions were recorded on the video tape.

At the State's request, the court admitted into evidence the video tapes that were made by Officers Spencer and Conley during the surveillance.Conley described the drug-related activities at 1316 West First Street as a "large operation" and estimated that "at least one hundred" transactions occurred over the three day period.As many as "15 to 20 people" are seen at one time participating in the sale of an object.Appellant appears on the video tape actively participating with other co-defendants and delivering an object in exchange for money.Appellant systematically approaches cars, makes an exchange, retreats into the same apartment, and then returns within seconds.Typically, a seller gives an object to a buyer with an outstretched arm and a "cupped hand."In return, buyers give cash to the sellers.On the tape, buyers leave the apartment within 30 seconds after their arrival.Police officers with significant experience in undercover drug-related operations testified that the sequence of events that the jury had observed on the video tapes are consistent with the delivery of crack cocaine.One officer told the jury that it was apparent that the individuals were working within a conspiracy because "there are a multiple of people all operating under the same guidelines for the same purpose."

Two adult co-indictees, Andre Ray and Stephanie Kirkpatrick, were offered immunity by the State in exchange for their testimony.Ray confirmed that Appellant was known to deliver cocaine to customers in exchange for money.Stephanie Kirkpatrick, who describes herself as only a "buyer," testified that she purchased crack cocaine from 1316 West First Street approximately 50 times in May 1993, and that several of the co-indictees either helped her purchase the crack or sold her the crack.Although she recognized Appellant, she had not bought any crack from him.

A juvenile co-indictee, K.W., testified that he normally bought a fifty dollar rock of cocaine, divided it with a razor blade into four sections and sold it for $100.Sometimes one of the co-defendants would sell it for him.K.W. testified that he participated in these drug transactions four or five times at 1316 West First Street during May of 1993.He confirmed that the standard price for a rock of cocaine at that location was $20.He also verified to the jury that the activity in which he was participating on the video tape was the sale of crack cocaine.K.W. stated that his sole purpose for being at 1316 West First Street was to sell "dope," and that Appellant"hustled" and made a "living" doing the same thing.After viewing the evidence...