Thomas, David v. State

Opinion issued April 4, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00127-CR ____________ DAVID LEE THOMAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 155th District Court Waller County, Texas Trial Court Cause No. 99-06-9934 O P I N I O N A jury found appellant, David Lee Thomas, guilty of delivery of a controlled substance, and the trial court assessed punishment at two years confinement in a state jail and a $10,000 fine. In three points of error, appellant contends the evidence was factually insufficient to sustain his conviction and the trial court erred by "arraigning" him in the presence of the jury and in denying a mistrial when the State violated the trial court's order granting appellant's motion in limine. We affirm. Background Waller County Westside Narcotics Task Force Agent Steve Duong testified that, on December 2, 1998, he was working undercover in Brookshire, Texas when appellant signaled him to pull over and then approached his car. Agent Duong asked appellant for $100 worth of crack cocaine. Appellant asked for the money at that time, but Duong refused. Appellant gave Duong his watch to hold as collateral for the money until appellant returned with the cocaine. After Duong circled the block, appellant retrieved his watch and gave Duong five rocks of crack cocaine. Agent Duong identified appellant before his arrest from a photo-spread, and later identified him again during trial. Task Force Agent John McGowan, working surveillance, observed appellant's transaction with Duong. McGowan also identified appellant at trial, recognizing him from the transaction with Duong and from his presence in the courtroom on a previous occasion. Camille Stafford, a chemist with the Texas Department of Public Safety Crime Lab, testified that the five crack rocks were in fact cocaine, weighing .53 grams. Sufficiency of the Evidence In his first point of error, appellant contends the evidence was factually insufficient to sustain his conviction because there was "no evidence to support an affirmative act committed to promote the commission of an offense." We treat this as a challenge to the legal sufficiency of the evidence to sustain his conviction. We review legal sufficiency by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.--Houston [1st Dist.] 1997, no pet.). The State charged appellant with delivery of cocaine by actual transfer, constructive transfer, and offering to sell. Tex. Health & Safety Code Ann. § 481.112(a)(b) (Vernon Supp. 2001). The jury charge instructed that "a person commits an offense if he intentionally or knowingly delivers a controlled substance," and cocaine is a controlled substance. The charge further instructed that the term "deliver" means "to transfer, actually or constructively or by offer to sell, to another a controlled substance, regardless of whether there is any agency relationship. The term "actual transfer" consists of transferring the real possession and control of a controlled substance from one person to another. Verduzco v. State, 24 S.W.3d 384, 385 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Viewed in a light most favorable to the verdict, Agent Duong offered appellant $100 for crack cocaine. Appellant gave Agent Duong his gold watch as collateral while he retrieved the cocaine. When appellant returned, he gave Duong five rocks of crack cocaine in exchange for the $100. Agent Duong identified appellant from a photo-spread as the individual who sold him the five rocks of crack cocaine. When appellant transferred possession of five rocks of crack cocaine from himself to Agent Duong, he made an actual transfer of a controlled substance under the statute. We hold the evidence was legally sufficient to sustain his conviction. Also, under his "factual sufficiency" argument, appellant, in a footnote, argues that although Agents Duong and McGowan identified him, "conflicting testimonies revealed the contrary." Under the factual sufficiency standard, we ask, "whether a neutral review of all of 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." King, 29 S.W.3d at 563. We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must also avoid substituting our judgment for that of the fact finder. Id. Agent Duong testified that he offered to buy $100 worth of crack cocaine from appellant. Appellant gave Duong a gold watch in exchange for the money until appellant returned with the drugs. Appellant then gave Agent Duong five rocks of cocaine in exchange for the return of the watch. Both Agent Duong and Agent McGowan identified appellant as the individual who gave Duong the cocaine. Attempting to establish he was wrongly identified as the person who sold Agent Duong the cocaine, appellant presented testimony from his fiancée that his hair, on the day the transaction occurred, was not as long as described by Agents Duong and McGowan. Appellant also introduced testimony he owned a different brand of watch than the one described by Agent Duong. We note that a jury decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). We hold the evidence was factually sufficient to support the jury's finding of guilt. We overrule appellant's first point of error. Arraignment In his second point of error, appellant argues that the trial court erred "when it conducted what appeared to be an arraignment proceeding in the presence of the jury." The record reveals the trial court, after impaneling the jury, asked the appellant to stand and allowed the State to read the indictment pursuant to article 36.01(a)(1) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 2001). After the indictment was read to the jury, appellant stated his plea of "not guilty" pursuant to article 36.01(a)(2) of the Code of Criminal Procedure. Id. at 36.01(a)(2). This is a usual and customary part of the criminal trial process, and appellant's argument that this was "improper and created inherent prejudice" is wholly without merit. We overrule appellant's second point of error. Motion in Limine In his third point of error, appellant contends the trial court erred in denying a mistrial when the State violated the trial court's order granting appellant's motion in limine. Outside the presence of the jury, appellant objected to Agent Duong's use of the term "narcotics suspect" in reference to appellant as a violation of his previously granted motion in limine. Agent Duong used the term when he testified that he identified appellant by name from a photo-spread of narcotics suspects. Appellant argues the use of the term brought in evidence of an extraneous offense. Rejecting the trial court's offer of an instruction to disregard, appellant moved for a mistrial, which was denied. Testimony or other evidence referring to or implying extraneous offenses may be rendered harmless by a trial court's instruction to disregard unless it was so clearly calculated to inflame the minds of the jury or it was of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). The reference to appellant as a "narcotics suspect," which was not repeated, was not so inflammatory as to undermine a possible instruction to disregard by the trial court. Id. However, appellant rejected the trial court's offer of an instruction to disregard, believing it would not be "appropriate enough" to cure the defect. Because an instruction to disregard would have properly cured any violation of the motion in limine, the trial court properly overruled appellant's motion for mistrial. We overrule appellant's third point of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Mirabal, Hedges and Jennings. Do not publish. Tex. R. App. P. 47.