Williams v. State, No. 08-05-00373-CR (Tex. App. 5/10/2007)
| Decision Date | 10 May 2007 |
| Docket Number | No. 08-05-00373-CR.,08-05-00373-CR. |
| Parties | MALCOLM DAVALLGHN WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 265th District Court of Dallas County, Texas, (TC# F-0451709-HR).
Before CHEW, C.J., McCLURE, and CARR, JJ.
This is an appeal from a jury conviction for the offense of possession with intent to deliver a controlled substance, to wit, cocaine, in an amount of four grams, but less than two hundred grams, enhanced by the allegation of a prior felony conviction. The jury assessed punishment at thirty-two years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
Officer Paul Lapiano testified that he worked in the narcotics division of the Dallas Police Department. On May 5, 2004, he and ten to fifteen other officers executed a search warrant at 1010 Caldwell Street in Dallas County, Texas.1 The officers arrived in a van, and each was positioned in line in the van, according to his assignment to perform during the execution of the search warrant. Officer Lapiano described the execution of a search warrant as a dangerous type of situation, due to the possible presence of a number of people and guns. He was the fifth person to exit the van, and he was assigned to cover the right side of the residence. He observed two people, one of whom was Appellant, on the porch of the residence. He saw that both individuals had been detained. Officer Lapiano was in charge of collecting the evidence and he was given an Altoids container. There were several baggies of crack cocaine in the container. Officer Lapiano placed that evidence in the police evidence locker.
Dallas Police Officer David Potts was also assigned to the narcotics division. He was assigned on the day of the search of the Caldwell residence to be the first person to approach. He was to secure anyone outside the front of the residence. As he approached, he saw a man and a woman on the front porch; the male was Appellant. His view of these individuals was unobstructed, and it was light outside, although dusk was approaching. Officer Potts commanded both of the individuals to let him see their hands. Officer Potts testified that Appellant appeared nervous, and he was watching the officer. Appellant discretely reached into his pocket, and he grabbed a tin and placed it on the ground, at the same time trying to distance himself from the tin. An officer named Moses then took control of Appellant in order to detain him. Officer Potts identified a tin Altoids box as the item Appellant put on the ground.
Officer Larry Moses, Sr. testified that he was assigned to use a battering ram to knock down the door of the residence. In this instance, however, the door was open, so he did not need to use the device. He was the third person to approach the house, behind Officers Potts and Joe Morin. Officer Moses saw Appellant and another individual on the porch. Appellant was being handcuffed by a police officer. Officer Moses noticed an Altoids can next to Appellant. Officer Moses remained to keep the can and Appellant in view. When Appellant was arrested, Officer Moses picked up the Altoids can and gave it to Officer Lapiano. The Altoids can contained numerous rocks of crack cocaine in plastic baggies.
Officer Morin testified that he was the second person in line to approach the residence. It was light outside, and Officer Morin's view of the porch was unobstructed. He saw Appellant on the porch. Officer Morin was watching the movements of the bodies and hands of the people on the porch. He saw Appellant slowly place something on the ground as he was lying down. He did not see what the object was.
Anne Weaver testified that she was an assistant supervisor for drug analysis at the forensics laboratory in Dallas County. She stated that the State's drug exhibit contained twenty-seven ziplock bags. The exhibit contained cocaine in an amount of 4.76 grams, including adulterants and dilutants. The State presented as an expert Dallas Police Narcotics Officer Barry Ragsdale. Ragsdale stated that, in addition to his work for the Dallas Police Department, he had done work for the Federal Drug Enforcement Administration. He had been a narcotics officer for ten and one-half years. He was not involved in the execution of the search warrant.
Officer Ragsdale identified the State's drug exhibit as individual small packages of rocks of crack cocaine and empty packaging for the packaging of drugs. He testified that small rocks of cocaine are typically sold in small individual baggies and the exhibit was indicative of the resale of crack cocaine. Officer Ragsdale stated that each of the baggies would be worth ten to twenty dollars. The value of the entire exhibit would be approximately $476. Officer Ragsdale stated that the exhibit was not indicative of personal use, given the individual packaging; rather, it was indicative of an intent to sell the crack cocaine to other individuals, perhaps as they approached the front porch of what he characterized as a "crack house." Ragsdale stated that a person who was purchasing crack cocaine for his own use would likely buy a fifty-dollar rock and would not take the time and effort needed to package it in small individual baggies. Rather, the user would chip a piece from the large rock, smoke it, and keep doing this until the large rock was finished. The witness testified that an individual charged with possession of under four grams of cocaine could be charged with possession of that substance, or he could be charged with possession with intent to deliver the substance, depending upon the circumstances.
During the defense portion of the trial, Officer Lapiano was recalled. He stated that the individuals found either inside or outside the house were detained outside. They were released, if no charges were to be brought against them.
Jimmy Palmer stated that he was in a walk-in closet when the police executed the search warrant. He was a friend of the owner of the house, a woman named Mickey Martinez. She allowed a large number of people to use the house to party, drink, and socialize. She was seldom at the residence.
Officer Moses was recalled, and he stated that, after he put the battering ram down, he stayed on the porch to watch Appellant. He noticed an Altoids can on the ground next to Appellant. He retrieved it and saw it contained baggies of a substance he believed to be crack cocaine. He gave the can to Officer Lapiano.
George Leon Hubbard testified he was a mechanic who repaired cars near the Caldwell residence. He was not particularly familiar with the residence. Hubbard testified that Appellant had brought his car to Hubbard that day to repair. He arrived after dark and missed Appellant. Hubbard's brother Elias and Hubbard's girlfriend related what had occurred at the house.2
Tawanta Michelle Williams testified that she was married to Appellant. She related that, on the day in question, Appellant had called her from jail to tell her that he had gotten arrested after he had taken her car to get it repaired. She testified that her car needed a fuse and Appellant had taken it to a friend to get it repaired.
Carmen Carey stated that, on the evening in question, she had gone to pick up her boyfriend, Hubbard. She knew the owner of the house and her boyfriend. He was also a mechanic. Carey testified that both the owner and her boyfriend were drug users. The owner had abandoned the house, and she allowed people to use the house. Carey related that people used drugs at the house, but she surmised that they used drugs they already possessed, because she was unaware of any drug selling at the house.
Carey testified that she was on the porch near Appellant when the police arrived. She jumped into some bushes. She had a marijuana "blunt" which she threw into the bushes. Carey stated that the police could not see from their van what was occurring close to the house behind the bushes. She related that she had seen Appellant once before when he came for car repair, and he never went inside the house. She had never seem him using drugs, and he had refused an offer to smoke marijuana.
In Issues Nos. One and Two, Appellant maintains that the evidence is legally and factually insufficient to support the conviction. Specifically, Appellant maintains that the evidence is insufficient to connect him to the Altoids tin. Further, Appellant argues that the evidence was insufficient to demonstrate that he had the intent to deliver the cocaine.
In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense, as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).3
Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, so the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex....
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