No. 05-08-01270-CR
Opinion Filed June 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80033-08.
Before Justices RICHTER, LANG-MIERS, and MYERS.
Opinion By Justice RICHTER.
A jury convicted Nathaniel Thomas Harrison of delivery of marijuana in a drug-free zone. The trial court assessed punishment at five years' imprisonment, probated for five years, and a $500 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly delivered marijuana to another in an amount of five pounds or less, but more than one-fourth ounce, and that appellant committed the offense in a drug-free zone. See Tex. Health Safety Code Ann. §§ 481.120(a), (b)(3), 481.134(b)(1) (Vernon Supp. 2009). To do so, the State had to prove appellant exercised actual care, control, or management over the marijuana and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband may be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Evidence Presented
On August 5, 2007, Christopher Phalan was arrested for possession of marijuana. Phalan agreed to work with the Wylie Police Department as a confidential informant (CI) to "work off the charges." The day after his arrest, Phalan telephoned appellant and asked to purchase a half-ounce of marijuana. The police recorded the call. Appellant agreed to sell Phalan the marijuana, telling him he was waiting for someone to come back from Dallas with the drugs. At trial, Phalan testified a detective dropped him off at a gas station located less than one block from appellant's house. The detective searched Phalan for contraband and made sure the listening and recording devices placed on Phalan's person were working properly before Phalan walked the rest of the way to appellant's house. The detective also gave Phalan thirty-five dollars to purchase the marijuana. Phalan walked from the station to appellant's house. After Phalan entered the house, appellant said "his guy" had called him, then appellant asked Phalan to "give him the money." Phalan gave appellant thirty dollars. Appellant and his girlfriend "Chrissy" left the house to get the marijuana; Phalan waited for them on the front porch. When appellant and Chrissy returned, Phalan followed them back into the house where appellant handed Phalan a small bag of marijuana. Phalan left the house and walked back to the detective's location. The detective drove Phalan a short distance away and parked behind a church where they would not be seen. After Phalan gave the detective the marijuana he had purchased from appellant, the detective searched Phalan again, then drove him home. An audiotape of Phalan's telephone conversation with appellant was admitted into evidence and played for the jury. On the audiotape, appellant agrees to sell marijuana to Phalan as soon as "his guy" gets back to Wylie from Dallas. Wylie police detective T.S. Pickrell provided video surveillance of Phalan going to appellant's house to purchase the marijuana. Pickrell testified he parked in a lot directly across the street from appellant's house, and that the border of Old City Park was less than 1000 feet from appellant's house. A DVD recording of Pickrell's surveillance was admitted into evidence. The DVD shows (1) surveillance of appellant's house before Phalan arrives, (2) Phalan walking to appellant's front door and entering appellant's house, (3) appellant and Chrissy leaving appellant's house and driving away in Chrissy's vehicle while Phalan waited outside on the front porch; (4) appellant and Chrissy returning to the house and taking Phalan back inside; and (5) Phalan leaving appellant's house and walking down the street. The DVD also shows that a public park with a playground and picnic tables is next door to appellant's house. Sergeant Chris Meehan, a narcotics detective with the Collin County Sheriff's Office, received a call from Pickrell on August 5, 2007, about a CI who would do undercover work with the Wylie Police Department. Meehan testified Pickrell had several CIs working in different areas of Wylie. Meehan met Phalan on August 6, 2007, and recorded each step of the drug transaction between Phalan and appellant. Meehan recorded Phalan's initial contact with appellant at the police station. Before Phalan went to appellant's house, Meehan put a "body wire" and a pocket recorder on Phalan's person. He searched Phalan for any narcotics, then gave Phalan thirty-five dollars for the buy. Meehan drove Phalan to a location near appellant's house, had Phalan walk the remainder of the distance, and waited at the location for Phalan to return. Pickrell monitored, with a video camera, Phalan's approach to and activity at appellant's house. Meehan testified that after a short time, Pickrell alerted him that a vehicle was leaving appellant's house. Meehan tried to follow the vehicle, but lost it in traffic. Meehan returned to the location where he had dropped off Phalan and waited. Phalan returned to him carrying a small bag of marijuana and five dollars. Later analysis showed the marijuana totaled .29 ounces. Appellant was not arrested until November 8, 2007. At that time, Meehan conducted a videotaped interview with appellant. The videotape of the interview was admitted into evidence and played to the jury. During the interview, appellant told Meehan that (1) he has "gotten [marijuana] for about a half-dozen other people;" (2) he asked Meehan if the CI the police used was named Joshua Galen; (3) he "buys" [marijuana] from a man named "D" and a "high schooler named Aaron;" (4) he said Phalan was his "number one hook-up;" and (5) he traded stolen merchandise from some teens, who got the items from burglarizing cars, for marijuana. Appellant did not testify or present any witnesses. Discussion
Appellant contends the evidence is legally and factually insufficient because the CI's testimony was uncorroborated. Appellant argues that because there was no physical evidence or proof of any kind that the marijuana was obtained from him, and the CI was not credible because he was working off his own drug arrest from one day earlier, the evidence is insufficient to support the jury's verdict. The State responds that the evidence is both legally and factually sufficient because the CI's testimony was corroborated by a video recording, audio recordings, and appellant's own statements at the time of his arrest. The jury heard Phalan's testimony about his initial telephone call to appellant asking for marijuana and appellant agreeing to deliver marijuana to Phalan. The jury also heard Phalan testify that he worked with undercover police officers to buy marijuana from appellant, paid appellant thirty-dollars for the marijuana, then left appellant's house and went directly to Meehan and gave Meehan the marijuana. It was the jury's function to judge the credibility of the witnesses and to resolve any conflicts in the evidence, and the jury was free to accept or reject any or all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Moreover, Phalan's testimony was corroborated by an audio recording whereby appellant agrees to deliver marijuana to Phalan, and a video recording that shows: (1) Phalan arrive at appellant's residence at a time agreed to by appellant, (2) appellant leave the residence to pick up the marijuana, (3) appellant return to his residence to deliver the marijuana to Phalan, and (4) appellant's residence is next to a playground area. Further, appellant's own statements during his police interview admitting he obtained marijuana from two individuals and delivered the marijuana to "about a half-dozen other people" tend to corroborate Phalan's testimony that appellant delivered the marijuana to him. We conclude the evidence is legally and factually sufficient to support appellant's conviction for delivery of marijuana in a drug-free zone. We resolve appellant's two issues against him. We affirm the trial court's judgment.