No. 05-01-01297-CR
Opinion Filed August 4, 2003 Do Not Publish Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-48259-RI AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion by Justice FitzGerald.
Brian Fautner appeals his conviction for delivery of cocaine in an amount of one gram or more but less than four grams. A jury convicted appellant of the crime. The trial court found two enhancement paragraphs true and, pursuant to the parties' agreement, assessed punishment at thirty years' imprisonment. Appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting five grounds he contends are arguable issues. Specifically, appellant contends the evidence is legally and factually insufficient to support his conviction, the State failed to disprove the defense of entrapment, and the trial court erred by allowing evidence of appellant's prior convictions to be introduced into evidence and failing to force the State to disclose the identity of a confidential informant.
Facts
Officer Kevin Willis testified he was assigned to the "Street Squad" and that the squad's primary responsibility was to "handle drug-related complaints." On January 5, 2001, he was working undercover with Officer Leonard Standige. The officers set up a meeting with appellant, after having been previously introduced to him by a "third party." The officers drove up to appellant, and appellant asked "how much [they] needed." Standige said they needed "$300 worth." Appellant used Willis's cellular phone to call "Frank" and told Frank that he was on his way over to get the "$300 worth." After the call, appellant hopped into the bed of the truck Standige and Willis were in and directed them to an apartment complex a few miles away. Appellant walked to an apartment with three hundred dollars in cash, then returned with six small clear plastic bags containing crack cocaine. Standige gave appellant sixty dollars for arranging the transaction. Standige confirmed Willis's testimony regarding the transaction. He also testified that the only people in the truck during the transaction were himself, Willis, and appellant. Standige was unaware of the means used by the "third party" to cause appellant to deliver narcotics to the officers. At the close of the State's case, a chemist testified the weight of the cocaine seized was 3.4 grams. Appellant testified "Angie" introduced him to Willis and Standige. Appellant recognized Willis as a police officer and tried to leave. Standige told appellant that he would send appellant to jail if he did not do as he said. Standige was trying to "get to" another drug dealer and wanted appellant to set up the deals so that Standige and Willis could eventually buy directly from the other drug dealer. Standige directed appellant to call him on his cellular phone every day until they were through with him. Appellant admitted participating in the drug transaction on January 5, 2001, but claimed he was coerced into the transaction by the officers. He also claimed that Angie rode with them to the apartment complex to buy the drugs. The State impeached appellant's testimony with proof of his prior felony convictions. Sufficiency of the Evidence
In his fourth and fifth grounds, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In his first ground, appellant contends the State did not disprove the defense of entrapment. We will consider these grounds together. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine if any rational jury could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When dealing with the defense of entrapment, we must also determine whether any rational jury could have found against the appellant on the entrapment issue. Flores v. State, 84 S.W.3d 675, 681 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In our review, we do not re-evaluate the weight and credibility of the evidence, but only decide if the jury reached a rational decision. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). The jury determines the credibility of all witnesses. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995). When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict, or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When, as here, a defendant presents a general defense at trial and is convicted, we must also apply the Johnson test to the jury's implicit rejection of the defense. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). We may not substitute our determination for that of the jury. See Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The resolution of conflicts in the evidence and the credibility of witnesses lies within the exclusive province of the jury. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). To obtain a conviction in this case, the State had to prove appellant intentionally and knowingly delivered cocaine, a controlled substance, to L. Standige, in an amount of one gram or more but less than four grams, including any adulterants or dilutants. Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c) (Vernon 2003). It is a general defense to prosecution that the defendant committed the crime because he was induced to do so by a law enforcement officer using means likely to cause persons to commit the offense. Tex. Pen. Code Ann. § 8.06 (Vernon 2003); Flores, 84 S.W.3d at 682. The court submitted appellant's entrapment defense to the jury, but they implicitly rejected the defense by virtue of their guilty verdict. Cf. Tucker v. State, 15 S.W.3d 229, 235 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (guilty verdict is implicit rejection of defendant's defensive theory). Here, there is no dispute that appellant delivered 3.4 grams of cocaine to Standige. Appellant admitted this on the witness stand. The only area of dispute is whether Standige coerced appellant into conducting the transaction. The only evidence supporting appellant's defense was appellant's impeached testimony. The jury was free to disbelieve appellant's evidence and believe the State's. After viewing the evidence in the light most favorable to the verdict, we conclude any rational jury could have found the essential elements of the crime beyond a reasonable doubt and found against appellant on the entrapment issue. We further conclude that, even in a neutral light, the jury's guilty verdict and implicit rejection of appellant's entrapment defense is not greatly outweighed by contrary proof and the proof supporting the jury's decisions is not so obviously weak as to undermine confidence in the verdict. Accordingly, appellant does not present an arguable issue in his first, fourth, and fifth grounds. Evidence of Previous Convictions
In his third ground, appellant contends the trial court erred when it admitted evidence of his prior convictions. Appellant asserts the evidence of his convictions for possession of cocaine and aggravated assault with a deadly weapon were more prejudicial than probative because they made him appear to be a violent drug dealer. The trial court held a hearing outside the presence of the jury to consider whether to allow the State to introduce evidence of appellant's previous convictions. Appellant objected to admission of the evidence, contending the evidence was more prejudicial than probative. The trial court decided evidence of appellant's prior convictions, subject to exceptions not implicated in this appeal, would be admissible for impeachment purposes. A defendant who testifies at trial places his credibility at issue and is subject to impeachment. White v. State, 21 S.W.3d 642, 646 (Tex.App.-Waco 2000, pet. ref'd). Rule 609 of the rules of evidence permits the use of evidence of prior felony convictions for impeachment purposes. See Tex.R.Evid. 609(a). Under rule 609(a), we determine whether the evidence of prior felony convictions is more probative than prejudicial by considering the following nonexclusive factors: (1) the impeachment value of the previous convictions; (2) the temporal proximity of the convictions to the crime on trial; (3) the similarity of the prior offenses and the present offense; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue. Jackson v. State, 50 S.W.3d 579, 592 (Tex.App.-Fort Worth 2001, pet. ref'd) (citing Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992)). We review the trial court's decision to admit evidence under the abuse of discretion standard. White, 21 S.W.3d at 646. The convictions at issue here are appellant's 1989 conviction for aggravated assault and1991 and 1997 convictions for possession of cocaine. The probative value of crimes of violence is less than that of crimes of deception. Aggravated assault is a violent offense, and possession of cocaine is not a crime of deception. This weighs against admission. See Dale v. State, 90 S.W.3d 826, 830 (Tex.App.-San Antonio 2002, pet. ref'd). The evidence of appellant's convictions demonstrate his propensity for running afoul of the law, and weighs in favor of admission. Jackson, 50 S.W.3d at 592-93. The two cocaine possession convictions are similar to the instant offense, which weighs against admissibility. Id. at 593. However, appellant's aggravated assault conviction is not similar to the instant offense, which weighs for admissibility. Furthermore, the trial court instructed the jury to consider the evidence of the convictions only for impeachment purposes. We conclude the prejudicial effect of the evidence of the cocaine convictions is mitigated by the evidence of the evidence of the aggravated assault conviction and the trial court's limiting instruction. Appellant's entire defense centered around his testimony that he had been coerced into committing the crime by Standige. Therefore, his credibility was very important, and strongly weighs in favor of admitting evidence of his prior convictions. See Dale, 90 S.W.3d at 831-32; Jackson, 50 S.W.3d at 593. After weighing the Theus factors, we conclude the trial court did not abuse its discretion in admitting evidence of appellant's prior felony convictions. Therefore, appellant does not present an arguable issue in his third ground. Confidential Informant
In his fourth ground, appellant contends the trial court erred when it failed to compel the State to disclose the identity of the confidential informant. Appellant contends the informant would have proved or disproved his guilt and that she was present at a "critical conversation," presumably, the conversation in which Standige allegedly coerced appellant into delivering drugs to the officers. From the record, the confidential informant appears to be the "third party" referred to in Willis's and Standige's testimony. Under rule of evidence 508, the State may protect the identity of a confidential informant. See Tex.R.Evid. 508. However, disclosure of the informant's identity may be warranted if the informer may able to give information necessary to a fair determination of guilt or innocence. See id.; Southwell v. State, 80 S.W.3d 647, 649 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The informer's testimony must significantly aid the defendant, and mere conjecture or supposition about possible relevancy is insufficient. Southwell, 80 S.W.3d at 649. The defendant has the burden to demonstrate that the informer's identity be disclosed. Williams v. State, 62 S.W.3d 800, 802 (Tex.App.-San Antonio 2001, no pet.). We review a trial court's ruling on a rule 508 motion under an abuse of discretion standard. Southwell, 80 S.W.3d at 650. Despite professing to be unaware of the confidential informant's identity, appellant refers to her as "Angie" in his pro se response and testified at trial that "Angie" was someone he had known for "six or seven years" before introducing him to Willis and Standige. Appellant also testified at trial that Angie was also known as "C'mon." Thus, it appears that appellant was quite aware of the confidential informant's identity. Therefore, it was not necessary for the trial court to require the State to disclose the informant's identity. We conclude the trial court did not abuse its discretion by not requiring the State to reveal the informant's identity. Consequently, appellant does not present an arguable issue in his fourth ground. Conclusion
We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment. KERRY P. FITZGERALD, JUSTICE