Wingfield v. State
| Decision Date | 17 July 2003 |
| Docket Number | NO. 2-01-396-CR.,2-01-396-CR. |
| Parties | CEDRIC E. WINGFIELD APPELLANT v. THE STATE OF TEXAS STATE. |
| Court | Texas Court of Appeals |
PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
INTRODUCTION
Appellant Cedric Earl Wingfield appeals from his conviction by a jury for possession with intent to deliver four to 200 grams of cocaine. After pleading true to an enhancement and a habitual offender notice, the trial court assessed punishment at thirty years' confinement. Appellant raises four points on appeal: (1)-(2) the evidence is legally and factually insufficient to support a finding of "possession" of the contraband or a finding of "intent to deliver"; (3) the trial court erred in refusing to instruct the jury on the lesser included offense of possession of a controlled substance; and (4) the trial court erred in refusing to suppress the cocaine because it was obtained by means of an illegal arrest or detention. We reverse and remand.
Around 11:40 a.m. on July 21, 2000, Euless police officers noticed Appellant driving a vehicle with an expired registration sticker. The police pulled Appellant over to conduct a traffic stop. When the officers spoke with Appellant, they discovered that he was driving without a driver's license and proof of insurance. Officer David Chaney asked Appellant if he had anything illegal in the car, and Appellant responded that he did not and that the officers could check for themselves.
Officer Chaney asked Appellant to step to the rear of his vehicle, and after Appellant complied, Officer Jermaine Montgomery searched the car for three to five minutes and found nothing illegal. While standing with Appellant, Officer Chaney noticed a "large bulge" in Appellant's left front pants' pocket, which the officer thought might be a small caliber weapon. The officer decided to conduct a pat-down search of Appellant and directed him to face the car with his legs spread and his hands on top of his head.
As Appellant assumed this position, Officer Chaney noticed a small black film canister fall to the ground in front of Appellant's feet. Chaney patted down Appellant, and he discovered that the bulge was a container of Primatene Mist, an asthma treatment. Having found no weapons, Officer Chaney then picked up the canister, which prompted Appellant to say, "[T]hat's not mine, that ain't mine." Inside the canister, Officer Chaney found several clear Ziploc baggies containing a tan powdery residue and a razor blade. Most of the substances in the baggies were in the form of rocks. The officers arrested Appellant. Testing later revealed that the canister contained cocaine weighing between 4.99 and 5.11 grams.
In his third point, Appellant complains that the trial court erred in failing to include within the court's charge a submission on the lesser included offense of possession of four to 200 grams of a controlled substance. The State argues that because there was no evidence from which a jury could have rationally concluded that Appellant possessed the cocaine with no intent to deliver it, the trial court did not err in refusing to submit an instruction on the lesser included offense. Alternatively, the State contends that Appellant can show no actual harm stemming from the trial court's refusal to submit the requested instruction. We agree with Appellant.
To determine whether a jury must be charged on a lesser included offense, we apply a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). The first step is to decide whether the offense is a "lesser included offense" as defined in article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. Possession of a controlled substance is a lesser included offense of possession with intent to deliver a controlled substance. Hanks v. State, 104 S.W.3d 695, 699-700 (Tex. App.—El Paso 2003, pet filed); Upchurch v. State, 23 S.W.3d 536, 538 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd).
The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, and not of the greater. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002); Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. Id. We must consider the evidence in a light most favorable to Appellant and give him the benefit of reasonable inferences without regard to whether the evidence is credible, controverted, or in conflict with other evidence. Id.; Upchurch, 23 S.W.3d at 540. If there is more than a scintilla of evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992); Walker v. State, 95 S.W.3d 516, 519 (Tex. App.—Fort Worth 2002, no pet.).
Intent to deliver may be proved by circumstantial evidence, including evidence surrounding its possession. Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S. 894 (1997). Factors courts have considered include: (1) the quantity of drug possessed; (2) the manner of packaging; (3) the presence of a large amount of money; (4) the defendant's status as a drug dealer; (5) the presence of drug paraphernalia for either drug use or sale; (6) the presence of evidence of drug transactions; and (7) the location at which the defendant is arrested. Id. at 251; Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd); Gabriel v. State, 842 S.W.2d 328, 331-32 (Tex. App.—Dallas 1992), aff'd, 900 S.W.2d 721 (Tex. Crim. App. 1995).
The State relied primarily on evidence relating to the amount and manner of packaging to demonstrate Appellant's intent to deliver. Max Courtney, who was the lab director of Forensic Consultant Services, testified that the substance obtained from Appellant was cocaine and weighed between 4.99 and 5.11 grams. Courtney had no expertise in the area of packaging for sale or resale of drugs. The State offered the testimony of Officer Chaney and undercover Officer Michael Webber as evidence of the manner of packaging.
Officer Chaney testified that the cocaine was in the form of powder and rocks and was packaged in "several clear plastic Ziploc baggies." In its brief, the State does not point to the specific number of large and small bags found inside the canister, but it instead refers to Officer Chaney's testimony that he found "several" baggies. At trial, Officer Chaney testified, without reference to any exhibit numbers, about the "package . . . in front of [him]," which contained the contraband seized from Appellant. Officer Chaney took four large envelopes, placed them in a baggie, and then described the contents as "four larger plastic baggies of brown powdery residue." When asked whether these were the same four baggies that he witnessed come out of the film canister, Officer Chaney testified that two came out of the canister, and two were packaged at the lab with "loose remaining cocaine." Officer Chaney then took four smaller baggies and placed them into a baggie. He testified that those were the same four baggies he remembered seeing while on the side of the road. Officer Chaney then placed a piece of loose material into a third large baggie and the film canister into another baggie. We note that the evidence envelope signed by Officers Chaney and Montgomery identified the contents of the film canister as "6 Zip lock [sic] baggies of tan powdery residue-cocaine as well as a small amount of rock cocaine."(2)
Officer Chaney also testified that a razor blade was found along with the cocaine. When asked whether the amount of cocaine constituted a usable quantity or an amount for sale or distribution, Officer Webber testified that "it does constitute an amount for sale or distribution"-a "dealer amount." Officer Webber testified that one of the pieces of cocaine was a dealer amount because it was of such size that it would need to be cut several times to fit inside a pipe. From this testimony, however, it is equally possible that the larger piece was for personal use because it had in fact not yet been cut up and packaged for sale therefore, Appellant could have bought enough cocaine to supply himself beyond one use. See Upchurch, 23 S.W.3d at 538-39. Additionally, as Appellant points out, there was no testimony regarding whether it was more likely that the blade would be used for purposes of personal use or dealing.
Appellant also directs us to Officer Webber's testimony that a person could buy cocaine in the same form that he or she might distribute it. In other words, Officer Webber acknowledged that a person might possess cocaine packaged in the same manner as when it was sold to him or her. Officer Webber testified that when a person gets cocaine for personal use, depending on whom it was purchased from, "[i]t could come wrapped in a baggie, [or] it could come unpackaged." When Appellant's counsel asked Officer Webber how he could determine "whether it's packaged for distribution or whether it has already been distributed," Officer Webber replied, "Well, it very well could be both."
Officer Webber testified that "[e]ach of the independent bags [in State's Exhibit 3]...
To continue reading
Request your trial