Opinion
No. 05-04-01382-CR
Opinion filed October 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00482-UN. Affirmed.
Before Justices MOSELEY, O'NEILL, and FITZGERALD.
OPINION
Stephen Edwards appeals his conviction by a jury for possession with intent to deliver four grams or more but less than 200 grams of cocaine. See Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2004-05), § 481.112(a), (d) (Vernon 2003). After appellant pled true to two enhancement paragraphs, the trial court assessed punishment at thirty years' confinement. In three points of error, appellant challenges the legal sufficiency of the evidence to support his conviction and contends the trial court erred in failing to suppress the testimony of a police expert and in overruling his objection to jury argument that was outside the record. For the reasons that follow, we overrule appellant's points of error and affirm the trial court's judgment.
Although appellant was indicted for possessing cocaine within 1,000 feet of a school, the jury found him not guilty of that allegation. See Tex. Health Safety Code Ann. § 481.134(c) (Vernon Supp. 2004-05).
I. FACTUAL BACKGROUND
There was evidence in the record that, after receiving complaints regarding drug sales in the parking lot of a liquor store, Dallas police officers set up an early evening surveillance of the location. Watching the well-lit parking lot through binoculars for about thirty minutes, Gerald Baum, a Dallas police officer, observed six or eight persons walk up to appellant, who was standing in the middle of the parking lot. Each time he was approached, appellant would walk over to a pay phone that was against a wall of the building, remove a brown paper bag, take something out of the bag, and then hand something to each person. Despite traffic into and out of the parking lot, appellant was the only person who approached the pay phone and the paper bag. Baum subsequently arrested appellant and retrieved the paper bag, which contained three plastic bags. Baum field tested the contents of the plastic bags and determined it was crack cocaine. Further testing established that the total weight of the cocaine was 5.2 grams, including adulterants or dilutants. Appellant told Baum he was homeless. Anthony Gipson, a Dallas police officer, testified as to drug transactions that involve some homeless persons. Gipson further testified that there were three rocks of cocaine in the "baggies," estimating the value of each rock to be about $50 or $100. Gipson described how to break off amounts for individual sale, and stated that the amount of cocaine for individual use was approximately one-tenth of a gram, one-fiftieth of the weight of the rocks in the present case.II. SUFFICIENCY OF EVIDENCE
In his first point of error, appellant challenges the legal sufficiency of the evidence to support the finding that he possessed the cocaine with intent to deliver it to another.A. Standard of Review and Applicable Law
When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. In determining the sufficiency of the evidence, we must consider all of the evidence, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). The jury is the exclusive judge of the witnesses' credibility and the weight of the testimony, may accept or reject all or part of the evidence of either side, and may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). Here, the State was required to prove beyond a reasonable doubt that appellant knowingly possessed with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code Ann. § 481.112(a). Possession means "actual care, custody, control, or management." Id. § 481.002(38) (Vernon Supp. 2004-05). Because appellant was not in exclusive possession of the place the contraband was found, the State must affirmatively link appellant to the contraband. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: (1) the accused's proximity to and accessibility to the contraband; (2) the quantity of the contraband found; (3) whether the contraband was in plain view; (4) whether the accused was present at the time of the search; and (5) whether the conduct of the accused with respect to the drugs indicates his knowledge and control. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except the accused's guilt. See Brown, 911 S.W.2d at 748. In a possession with intent to deliver case, the "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. Taylor, 106 S.W.3d at 831. Intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Id. B. Discussion Appellant contends that the State's evidence is insufficient because, although Baum testified that he observed "hand-to-hand" transactions, he was not in a position to see that the transactions involved narcotics. Appellant points to Baum's testimony that he may have been 100 yards away but was not good at measuring distances and that he could not see what was in appellant's hands. Appellant argues that, while his behavior may be suspicious, the conclusion that he possessed cocaine with intent to deliver is conjecture. However, the evidence shows that Baum observed the transactions through binoculars and had a "complete observation" of the parking lot. Moreover, the transactions involved only the contents of the brown paper bag, which indisputably contained cocaine; there was no testimony that the bag contained anything other than cocaine. Appellant's reliance on Dickey v. State, 693 S.W.2d 386 (Tex.Crim.App. 1984), is misplaced. In that case, a police officer observed the defendant at an uninhabited farm where marijuana was growing. The defendant walked from "plant area to plant area" and had in his hands a plastic bag of "dark green leaves," but never touched a plant. Id. at 388. The court of criminal appeals agreed that the evidence was legally insufficient to support a conviction for possession of the marijuana when the officer's testimony supported an inference that the defendant was harvesting the field, but also supported other inferences. Id. at 389-90. In contrast, here, Baum saw appellant take something from a bag containing cocaine. Accordingly, there is some evidence, under the affirmative links analysis, that appellant possessed the cocaine. See Taylor, 106 S.W.3d at 831. In addition, Baum and Gipson testified to the quantity and retail value of cocaine contained in the individual baggies and that the amount equaled approximately fifty individual sales amounts. Accordingly, there is some evidence that appellant intended to deliver the cocaine. See id. Having reviewed all the evidence under the appropriate standard, we conclude the evidence is legally sufficient to support conviction for the charged offense. Accordingly, we overrule appellant's first point of error.III. EXPERT TESTIMONY
In his second issue, appellant contends the trial court erred in failing to suppress Gipson's testimony because he did not qualify as an expert and his testimony was more prejudicial than probative.A.
Standard of Review and Applicable Law A trial court's ruling on the admissibility of expert testimony is reviewed under an abuse of discretion standard. Russeau v. State, No. AP-74466, 2005 WL 1523774, at *7 (Tex.Crim.App. June 29, 2005); Beasley v. State, 838 S.W.2d 695, 703 (Tex.App.-Dallas 1992, pet. ref'd); Perryman v. State, 798 S.W.2d 326, 329 (Tex.App.-Dallas 1990, no pet.). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. The burden of establishing the admissibility of an expert's opinion rests on the party offering such evidence. Perryman, 798 S.W.2d at 329. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Prejudicial influence is evidence with a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1990) (citation omitted.). It is the appellant's burden to show that the probative value of objected-to testimony was substantially outweighed by the danger of unfair prejudice. See Kos v. State, 15 S.W.3d 633, 642 (Tex.App.-Dallas 2000, pet. ref'd).B.
Discussion Outside the presence of the jury, Gipson testified that he had sixteen years' experience as a narcotics detective and described "street level drug trafficking" that sometimes involved homeless people. The trial court overruled appellant's objections as to Gipson's qualifications as an expert and that the testimony was more prejudicial than probative. Gipson testified before the jury, and appellant was granted a running objection. Gipson testified as to the value and packaging of drugs for street sale and that some homeless people conducted drug transactions, fronting for others, and might be entrusted with the drugs or the money. According to Gipson, in such transactions the deliverer of the drugs may not be the person who accepts the money. Further, he testified some homeless people were recruited because they were willing to sell drugs "for a small portion of narcotics, a few dollars." Gipson also stated, "I am sure there are homeless people that ha[ve] never sold drugs in their life. But it is an easy way for you [sic] to obtain some of the drugs that they use." The State established Gipson's qualifications as an expert through his testimony as to his sixteen years of investigating drug transactions and his knowledge of drug transactions involving some homeless people, thus establishing his qualifications as an expert through knowledge, skill, and experience. See Tex. R. Evid. 702; Taylor, 106 S.W.3d at 833; Beasley, 838 S.W.2d at 704-05. Appellant contends that Gipson's testimony that homeless people are recruited to sell drugs, do not handle both money and drugs at the same time, and sell drugs to support their habit was prejudicial testimony. However, Gipson's testimony was probative on the issues of the participation of homeless people in street level drug trafficking and why appellant was not carrying money when he was arrested. Gipson also stated that not all homeless people are involved in drug trafficking. We cannot conclude that the probative value of Gipson's evidence was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Kos, 15 S.W.3d at 641-42.IV. JURY ARGUMENT
In his third point of error, appellant argues the trial court erred in overruling his objection to jury argument that was outside the record. The prosecutor argued:But let's talk about whether or not this defendant is even homeless in the first place. What evidence is there that he is homeless? The only information, the only evidence that he is homeless is what apparently was told to Officer Baum when he booked him into jail. No evidence. Nothing to support that. No witnesses to verify that he is in fact homeless. And folks, if he is homeless, then what is he doing with that great big diamond earring in his ear. Remember how [appellant's counsel] talked about drug dealers wearing flashy jewelry, that's a flashy stone. He is so homeless —Appellant objected that there was no testimony as to a diamond and the prosecutor was mischaracterizing the evidence. The trial court overruled the objection. The approved general areas of argument are: (1) summation of the evidence; (2) any reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. In examining challenges to jury argument, we consider the remark in the context in which it appears. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App. 1983). Argument based on what the jury observes and hears in the courtroom is clearly within the record. Antwine v. State, 572 S.W2d 541, 544 (Tex.Crim.App. 1978). Here, the jury could observe appellant's appearance, including his earring. There was evidence that appellant was homeless. In addition, Gipson testified that "some drug dealers wear a lot of jewelry." In his closing argument, appellant's counsel referred to "a homeless person with no money" coming to jail. Further, appellant's counsel argued that, although Baum observed six to eight sales, "Where is all this money?" Referring to Gipson's testimony about how homeless persons might be involved in drug trafficking, appellant's counsel argued, "Where is the guy that has got the money[?]" In light of this record, we conclude that the State's argument was a response to appellant's argument as to his homeless status and the absence of money. We further conclude that the remarks, in context, were not a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. See Wesbrook, 29 S.W.3d. at 115. Accordingly, we overrule appellant's third point of error.