Roy Brown Howard v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-89-177-CR

ROY BROWN HOWARD,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

NO. 3-89-181-CR

JORY WAYNE PULLEN,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NOS. 37,821, 37,820, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

These are appeals from convictions for possession of cocaine of less than twenty-eight grams with intent to deliver. The appellants were separately indicted but jointly tried.

Following the jury's verdicts of guilty, the court assessed punishment. Appellant Howard entered

a plea of "true" to a prior conviction for delivery of marihuana. His punishment was assessed at

twenty years' imprisonment. Appellant Pullen pleaded "true" to the three prior convictions

alleged for enhancement of punishment. The court assessed his punishment at forty years'

imprisonment.

Each appellant advances a single point of error claiming that the evidence is

insufficient to support his conviction. We will affirm the judgments of conviction.

Killeen police officer Dennis Baldwin testified that about 10:00 p.m. on January

20, 1989, he received information from a confidential informant, whom he knew personally and

had worked with previously. The informant told Baldwin that two black males in their "late

twenties" were selling crack cocaine in downtown Killeen; that they were in a brown late model

vehicle bearing Texas license plates 195 RPP; that one of the men was wearing a running suit with

"cadillac" written on the side, and said he was from Waco; that this man offered to sell cocaine

to the informant. Baldwin also received the information that the two men "were going to go to

some of the local clubs in the area."

Baldwin, who had three years' experience with narcotic related offenses, went with

officer Kenneth Olson to the downtown area. About 10:45 p.m., the officers found the described

vehicle, a Chrysler LeBaron, parked in front of the National Cafe, a local club. Baldwin

described the area as a "high crime area" known for narcotics trafficking. The officers parked

their vehicle 150 to 200 yards away. Partially through binoculars, the officers observed the

appellants in and around the car bearing license plates 195 RPP. People were observed coming

up to the two men, staying a short time and leaving. Baldwin related that at the distance he was

unable to see any exchange of money or "dope," but based on his experience and training, it was

his opinion "they were dealing crack cocaine." Baldwin related the surveillance continued for

approximately an hour, and the appellants were in sight the entire time except when the appellants

went inside and once when they were "up next to a car."

Baldwin testified that the two men left in the brown car with appellant Pullen

driving and with appellant Howard riding in the passenger seat. The officers followed and with

backup assistance stopped and arrested the appellants. A search of Pullen revealed one 0.02 gram

rock of crack cocaine. There was also on his person an empty film canister. Baldwin explained

that such canisters were commonly used to carry crack cocaine. In Pullen's shirt pocket the

officers found $197.41. The officers also found four $20.00 bills in other pockets of Pullen's

jumpsuit. Baldwin testified that $20.00 bills were commonly used in the sale of crack cocaine

rocks. Under the jumpsuit, Pullen was wearing a running suit with "cadillac" written on it.

Pullen stated he was from Waco and was unemployed.

Officer Kenneth Olson generally corroborated Baldwin's testimony. After the stop

and arrest, Olson searched Howard. Two rocks of crack cocaine, later shown to weigh 0.05

grams, were found on Howard's person. He had no money and told the officers he was

unemployed. The chain of custody was established, and the chemist testified the chemical analysis

showed the substance submitted was crack cocaine.

Pullen did not testify. Howard testified on direct examination that he had received

an undesirable discharge from the Army, had been convicted of delivery of marihuana, and had

served time in prison. He also related other arrests in California and Texas, including a 1987

arrest for possession of marihuana in Bell county. Howard related that he had been watching

television in a washateria in the same building as the National Cafe, that he only asked Pullen for

a ride to his home, that he had not been with Pullen earlier, and did not know Pullen had any

cocaine on him. He stated that he had earlier been given the two rocks of cocaine by a man at

Motel 7, whose name he did not know but whom he "had seen around." Howard testified that

Pullen was unaware that he was in possession of any cocaine.

The appellants do not challenge the search and seizures. They claim the evidence

was insufficient to support their convictions, particularly the essential element of intent to deliver.

The elements of the offense charged against each appellant was that he (1) intentionally or

knowingly (2) possessed (3) cocaine (4) with intent to deliver it. Gonzales v. State , 761 S.W.2d

809, 814 (Tex. App. 1988, pet. ref'd). The trial court charged in accordance with the allegations

of the indictment and also submitted the cases upon the law of parties in each jury charge. Tex.

Penal Code Ann. § 7.02 (1974). The burden of proof was upon the State to prove each element

of the offense beyond a reasonable doubt. Tex. Penal Code Ann. § 2.01 (1974); Tex. Code

Crim. Proc. Ann. art. 38.03 (Supp. 1992). That burden can be sustained by either circumstantial

or direct evidence. Maynord v. State , 334 S.W.2d 822, 824 (Tex. Crim. App. 1960); see also

Taylor v. State , 684 S.W.2d 682 (Tex. Crim. App. 1984); Indo v. State , 502 S.W.2d 166 (Tex.

Crim. App. 1973).

There is undisputed direct evidence that each appellant had crack cocaine in his

possession. Each appellant insists, however, the evidence is insufficient to show the possession

was with intent to deliver. After receiving information from an informant that certain described

men in a given car were selling cocaine in downtown Killeen, the officers were able to locate the

two men. They were outside a local club in a high crime area where narcotic trafficking

commonly occurred. The men were under surveillance for approximately an hour. Individuals

were constantly coming up to both of them, staying a short time and leaving. Officer Baldwin

expressed the opinion the men were "dealing" crack cocaine. At the time of their arrest, both

appellants had crack cocaine in their possession, albeit small amounts. In addition, there was

found on appellant Pullen's person a film canister and a number of $20.00 bills, both of which

are commonly used in the sale of crack cocaine. No money was found on appellant Howard, but

he had been in Pullen's company for the time he was under surveillance by the officers and was

seen being approached by various individuals who stayed only a short time.

Intent can be inferred from acts, words and conduct by the accused. Dues v. State ,

634 S.W.2d 304 (Tex. Crim. App. 1987); Kimes v. State , 740 S.W.2d 903 (Tex. App. 1987, pet.

ref'd); Creel v. State , 710 S.W.2d 210 (Tex. App. 1986), aff'd , 754 S.W.2d 205 (Tex. Crim.

App. 1988). It is a question of fact to be determined by the trier of facts from all the

circumstances and facts in evidence. Hemphill v. State , 505 S.W.2d 560, 562 (Tex. Crim. App.

1976); Carter v. State , 753 S.W.2d 432 (Tex. App. 1988, pet. ref'd). As a general rule, any

ultimate fact may be established by circumstantial evidence from which a jury may draw

reasonable inferences. Ex parte Watson , 606 S.W.2d 902 (Tex. Crim. App. 1980). Participation

in a criminal enterprise may be inferred from circumstances and need not be shown by direct

evidence. Markham v. State , 761 S.W.2d 553 (Tex. App. 1988, no pet.); Palez v. State , 693

S.W.2d 761 (Tex. App. 1985, no pet.). Circumstantial evidence may be used to prove one is a

party to an offense. Beier v. State , 687 S.W.2d 2, 4 (Tex. Crim. App. 1985).

Jurors are triers of the fact and the judges of the credibility of the witnesses and

the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (1979). The

jurors may accept or reject any part of or all the testimony given by the witnesses. Beardsley v.

State , 738 S.W.2d 681, 683 (Tex. Crim. App. 1987).

The standard for review of the sufficiency of evidence is whether, viewing the

evidence in the light most favorable to the verdict, any rational trier of the facts could have found

the essential elements of the crime charged 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); Sharp v. State ,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jackson v. State , 672 S.W.2d 801, 803 (Tex.

Crim. App. 1984). The standard is applicable to both direct and circumstantial evidence cases.

Chambers v. State , 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986); Christian v. State , 686

S.W.2d 930, 934 (Tex. Crim. App. 1985); Houston v. State , 663 S.W.2d 455, 456 (Tex. Crim.

App. 1984).

A conviction based upon circumstantial evidence, however, cannot be sustained if

the circumstances do not exclude every other reasonable hypothesis except that of the defendant's

guilt. See Butler v. State , 769 S.W.2d 234 (Tex. Crim. App. 1989); Burns v. State , 676 S.W.2d

118, 120 (Tex. Crim. App. 1984). Any alternative hypotheses, however, must be reasonable,

consistent with the facts proved and the circumstances, and not out of harmony with the evidence.

Autry v. State , 626 S.W.2d 758, 761 (Tex. Crim. App. 1982), cert. denied , 459 U.S. 882 (1982);

see also Brown v. State , 748 S.W.2d 258, 262 (Tex. App. 1988, no pet.). (1)

Applying the "rationality test," we conclude that a rational trier of fact could have

found beyond a reasonable doubt all the essential elements of the offense charged against each

appellant, keeping in mind that the evidence must be viewed in the light most favorable to the

verdict, accepting all credibility choices and reasonable inferences made by the jury. See United

States v. Mixon , 816 F.2d 1022, 1029 (5th Cir. 1987); United States v. Blank , 653 F.2d 989, 995

(5th Cir. 1981), cert. denied , 454 U.S. 1055 (1981). The single point of error advanced by each

appellant is overruled.

The judgments of conviction are affirmed.

John F. Onion, Jr., Justice

[Before Justices Powers, Jones and Onion * )

Affirmed

Filed: June 10, 1992

[Do Not Publish]

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (1988).

1.

1 See Geesa v. State , 820 S.W.2d 154 (Tex. Crim. App. 1991) (The reasonable hypothesis

construct is now abolished, but the Geesa opinion is not to be applied retroactively.).