No. 05-08-01682-CR
Opinion Filed November 4, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F04-58432-H.
Before Justices MORRIS, MOSELEY, and MYERS.
Opinion By Justice MYERS.
Derrick Jermaine Pierce was convicted of possessing between four and two hundred grams of cocaine with the intent to deliver, and was sentenced to fifteen years in prison. In three issues, he argues the evidence is legally and factually insufficient and the State should have been required to disclose the identify of a confidential informant. We affirm the trial court's judgment.
Background
At trial, Detective Larry Gordon testified that he had been employed by the Dallas Police Department for approximately eleven years. He was a narcotics detective for four of those years. In November of 2004, working in an undercover capacity, Gordon began investigating an apartment complex at 5963 Highland Hills Drive, in Dallas, Texas. Gordon was working with his partner, Willie Ford, who was also an undercover narcotics officer. As part of this investigation, Gordon bought a gun from an individual at the apartment complex. When Gordon asked this person about the purchase of drugs, he referred the detective to apartment 107. Pursuant to the investigation, Gordon also worked and dealt directly with a confidential informant (CI). During his surveillance of apartment 107, Gordon interacted with or observed appellant on several occasions. On one occasion, Gordon observed the CI talking to appellant. Gordon also watched apartment 107 from his car in the parking lot located in front of appellant's apartment. On another occasion Gordon saw appellant walking in front of the apartment and they exchanged greetings. Appellant had told the informant that his name was "Donkey," and he gave the informant a telephone number to call. Gordon testified that during his brief conversation with appellant he referred to him by the name "Donkey," and appellant responded to this name. During his testimony, Gordon also described the Dallas Police Department's requirement of at least two drug buys at a location in order to obtain a search warrant for that location. After making two drug buys from apartment 107 and obtaining a search warrant from a judge for that unit, Gordon, his partner, and other officers executed the search warrant on November 18, 2004, at approximately 8:00 p.m. Gordon was the first person to enter the one bedroom apartment. He and his partner encountered a woman — later identified as Aquanetta Braxton — lying face down on a sofa in the living room. Gordon testified that part of the procedure for executing the search warrant is to "freeze up" any individuals present at the warrant's location so those persons do not have an opportunity to react. In this way, the entry team executing the warrant "froze" Braxton and one of the officers handcuffed her. Gordon also noted that, before the officer secured Braxton, he saw appellant "standing near the kitchen" in a hallway. Another individual, Brian Miller, was standing next to appellant at the time. A child was found in the bedroom. All of the individuals in unit 107 were removed so the officers executing the search warrant could conduct a secondary search of the apartment. From the doorway of the apartment, Gordon saw a bag of what appeared to be crack cocaine "on a little stand" next to a television in the living room. While standing in the living room, he observed what appeared to be crack cocaine on the kitchen counter. Upon closer examination, Gordon noticed that some of the crack cocaine was on a digital scale and some of it appeared to have been "cut up by a razor blade" that was next to the scale. Gordon took pictures of the razor blade, the drugs that had been cut, and some of the numerous razor cut marks found on the kitchen counter. Small "baggies"-some of them containing individual portions of cocaine-were found in the apartment. Gordon seized the cocaine, the digital scale, and the razor blade as evidence. Gordon testified that he checked Miller for outstanding warrants, found none, and later released him. Appellant, however, had a misdemeanor warrant for his arrest, and appellant was therefore arrested for the outstanding warrant and the drug offense. Appellant was handcuffed and taken outside. Gordon testified that appellant, on his own initiative, then made the statement, "This is all me." Gordon also testified that appellant indicated he did not want his girlfriend, Aquanetta Braxton, "to go to jail." Braxton was not arrested. Gordon noted that a man named Mark Wooten was found outside the apartment at the time of the search and was arrested after "running" from the scene. But Wooten was not associated with the apartment being searched and was arrested for an unrelated offense. Andrew Moore, a drug chemist employed by the Southwestern Institute of Forensic Science (SWIFS), analyzed the drugs that were seized. Moore testified that his analysis of State's exhibit 13(A) showed the contents were 2.49 grams of cocaine, including its adulterants and dilutants. The substance was ninety-nine percent pure, resulting in 2.46 grams of actual cocaine. Moore also testified that State's exhibit 13(B) included the contents of "sixty-five yellow ziploc bags" and contained 6.50 grams of cocaine, including its adulterants and dilutants. The substance was seventy-seven percent pure, resulting in 5.0 grams of actual cocaine. The contents of various other zip lock bags recovered from the apartment were not analyzed. At the time of trial, Willie Ford had been employed by the Dallas Police Department for approximately eight years, and was assigned to the narcotics division. In November of 2004, he worked with Gordon in investigating the Highland Hills Drive apartment complex, and Ford also worked with the CI. He was present with Gordon during the CI's two drug buys prior to obtaining the search warrant. Ford was familiar with the Highland Hills Drive apartment complex and testified that its residents were mostly families, including "mostly females with young kids." Barry Ragsdale, a Dallas narcotics officer, testified generally regarding drug investigations, cocaine distribution, intent to distribute, and the use and sale of cocaine. Ragsdale stated that digital scales and razor blades were often used to break down cocaine into smaller pieces for sale or distribution. Based on the manner in which the cocaine in this case was apportioned and packaged, and the total amount of cocaine as well as the razor and the digital scale, Ragsdale believed the cocaine was intended for distribution. Ragsdale also offered various reasons why the identity of a confidential informant should remain confidential. Aquanetta Braxton testified that she had been appellant's girlfriend for "[a] couple of years" and that, in November 2004, she and her four-year-old daughter lived in apartment 107. Braxton testified that although appellant did not live at the apartment, he visited her often. The evening that the police executed the search warrant, Braxton returned from work and picked up her daughter from her cousin, who lived next door and was babysitting Braxton's daughter. Braxton returned to the apartment and put her daughter in the bedroom, and then went over to the couch and fell asleep. She was awoken by the police entering the apartment and was placed face down on the floor by the police before being restrained and taken outside. In addition to seeing the police in the apartment, she also saw appellant and Miller in the apartment. Braxton testified that while she was still in the apartment, she heard one of the officers say to appellant something to the effect of, "This is your new hangout." She heard appellant respond, "Nah, this is my girlfriend's apartment." She also heard another officer tell appellant, "Yeah, because your girlfriend sold me drugs," to which appellant replied, "no, my girlfriend hasn't never sold you any drugs." Braxton recalled that after appellant made this statement, one of the officers threw him to the ground, hit him, and told appellant to "[j]ust shut the `F' up." She denied hearing appellant, while inside the apartment, tell the police that the drugs belonged to him. After this, the officers took everyone out of the apartment. Braxton testified that she had met Miller through appellant's family and that they had interacted on several occasions. She also stated that appellant was a student at Paul Quinn College and lived with his parents. Miller lived across the street within the same apartment complex. Braxton noted that appellant would "hang out outside" along with others around the apartment complex. She also asserted that appellant could not live with her because she would lose her public housing status and she was not willing to risk that. To Braxton's knowledge, appellant did not have a key to her apartment, although he may have known that her cousin living next door had a key to the apartment. Braxton testified that appellant was not selling drugs from her apartment. She also denied that the razor, crack cocaine, and digital scale belonged to her. She further stated that she did not know how the drugs or other seized items got into her apartment. The jury convicted appellant of the indicted offense — possessing between four and two-hundred grams of cocaine with the intent to deliver — in September 2005. Appellant elected to have the trial court conduct the punishment phase of the trial. The trial court found the enhancement paragraph true and sentenced appellant to fifteen years in prison. Appellant did not perfect an appeal from this sentence. He subsequently filed a writ of habeas corpus and an out-of-time appeal was granted on November 5, 2008. Appellant then brought this timely appeal. Discussion Sufficiency
Appellant's first and second issues are framed as challenges to the legal and factual sufficiency of the evidence. Standard of Review
The court of criminal appeals' recent decision in Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (plurality op.), concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. case. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 2010 WL 3894613, at *5; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 2010 WL 3894613, at *5; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Applicable Law
A person possesses a controlled substance with intent to deliver if he knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1. Tex. Health and Safety Code Ann. § 481.112(a) (West 2010). Cocaine is a Penalty Group 1 controlled substance. Id. § 481.102(3)(D). Possession with intent to deliver is punishable as a first degree felony if the amount of the controlled substance is four grams or more, but less than two hundred grams. Id. § 481.112(d). If the accused did not have exclusive possession and control of the illegal substance, the state must present evidence, direct or circumstantial, linking the accused to the substance. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals has enumerated a non-exclusive list of "links" to establish the defendant knowingly possessed a controlled substance. Those links are: (1) the defendant's presence when a search was conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12. The number of factors linking appellant to the contraband is not dispositive. Instead it is the "logical force of all of the evidence, both direct and circumstantial," that establishes possession of the contraband. Id. at 162. Analysis
Appellant argues that the State did not prove beyond a reasonable doubt that he exercised care, control and management over the contraband or knew it was contraband. Appellant also argues the State did not link him to the contraband, which was State's exhibits 13(A) and 13(B). Braxton testified that neither appellant nor Miller were in her apartment when she returned from work that night, but she fell asleep and woke up only when the police raided her apartment. She did not know how long she had been asleep. Braxton also stated that although appellant did not have a key to her apartment, her cousin had a key to the apartment and appellant "must have got the key from my cousin." Unlike Miller, who only came to the apartment when he was seeking appellant, appellant visited Braxton "[p]robably like every other day," according to Braxton's testimony. Appellant was standing just outside the apartment's kitchen — an enclosed space — when police executed the search warrant, and in the kitchen police found crack cocaine atop the digital scale, crack cuttings on the razor blade near the digital scale, and a number of what appeared to be fresh razor cut marks on the kitchen counter. All of this contraband was in plain view and readily accessible to appellant. Braxton also testified that she had never seen drugs in her apartment before, she would not allow appellant to sell drugs out of her apartment for fear of losing her housing assistance, the zip lock bags and the drugs contained therein did not belong to her, and she had never seen a digital scale in her life. After the police took appellant outside, he stated, on his own accord, "This is all me," and indicated he did not want his girlfriend, Braxton, to go to jail. No one disputes the authenticity of the crack cocaine found at apartment 107. The jury could reasonably conclude that even if appellant did not own the apartment and was not on the lease, he had access, control or management of the apartment and the contraband that was found there. Regarding intent to deliver, in addition to the evidence discussed above, we note that the total amount of cocaine that was tested and confirmed in this case was approximately 8.99 grams. There were 2.49 grams of cocaine in the kitchen along with the small digital scale and razor blade. The placement of the crack rock on the digital scale, the presence of crack cuttings on the razor found near the scale, and the razor cut marks on the kitchen counter all suggest the cocaine was being cut and packaged for delivery. In addition, the police found sixty-five zip lock "baggies" containing individualized portions of what totaled 6.50 grams of crack cocaine. Ragsdale testified that, based on the manner in which the cocaine in this case was apportioned and packaged, and the total amount of cocaine as well as the presence of the other items, the cocaine was intended for distribution. We conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that appellant was guilty of the charged offense. Appellant's first and second issues are overruled. Confidential Informant
In his third issue, appellant argues the trial court abused its discretion by refusing to grant his motion to disclose the identity of the CI. Standard of Review
We review a trial court's denial of a motion to disclose a confidential informant under an abuse of discretion standard. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980). Under this standard, we affirm the judgment unless the trial court's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We may not substitute our judgment for that of the trial court; rather, we must decide whether the trial court's decision was arbitrary or unreasonable. Id. We must consider all the circumstances of the case to determine whether the trial court abused its discretion by not requiring the State to disclose the informant's identity. Portillo v. State, 117 S.W.3d 924, 928 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Applicable Law
The State has the privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in a criminal investigation. Tex. R. Evid. 508(a). There are three exceptions to that privilege. Id. 508(c)(1)-(3). One exception is that the defendant may obtain disclosure of the identity if the defendant shows the informant may be able to give testimony necessary to a fair determination on guilt or innocence in a criminal case. Id. 508(c)(2). "If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits" in a criminal case, and the privilege is invoked, the trial court must then allow the State "to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony." Id. Counsel and the parties are not permitted to be present during the in camera showing. Id. "If the court finds that there is a reasonable probability that the informer can give the testimony," either the State must disclose the informant's identity or, on the defendant's motion, the court must "dismiss the charges as to which the testimony would relate." Id. The defendant has the burden to establish a "plausible showing" that the confidential informant's testimony is necessary for a fair determination of guilt or innocence. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). "Evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informer's identity must be disclosed." Id. Analysis
In the present case, Gordon testified at the pretrial hearing that the CI's first drug purchase from appellant occurred on November 1, 2004. On that occasion, Gordon waited in the parking lot while the CI met with appellant. The CI's second drug buy was on November 17, 2004. Gordon testified that, during this second drug purchase, he waited for the CI on a staircase at the apartment complex. But the indicted offense occurred on November 18, 2004, twenty-four hours after the CI's second drug purchase, when the police executed the search warrant at apartment 107. Gordon used the CI to support probable cause for the search warrant, and the CI was not present at nor did he witness the police execution of the search warrant. The charges in this case were based on the evidence found during the execution of the search warrant and on Gordon's observations. Courts have compelled disclosure where an appellant demonstrates the informant participated in the offense, was present during the commission of the offense, or could otherwise offer testimony material to appellant's participation in the offense. See Ford v. State, 179 S.W.3d 203, 210 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (when CI's information was used only to establish probable cause for a search warrant and he neither participated in the offense nor was present when search warrant was executed, the informant's identity need not be disclosed because his testimony was not essential to a fair determination of guilt); Long v. State, 137 S.W.3d 726, 733 (Tex. App.-Waco 2004, pet. ref'd) (CI only supplied information that established probable cause necessary for the issuance of a search warrant, and he did not supply the information on which State relied for a conviction); Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.-Dallas 1991, pet ref'd) (informant's testimony was neither relevant nor helpful because he was not present at the time of the execution of the search warrant or at the arrest, and he did not participate in the charged offenses); see also Mendoza v. State, 823 S.W.2d 752, 753 (Tex. App.-Dallas 1992, pet. ref'd) (disclosure of CI's identity required because CI witnessed the charged offense same); Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991) (same). In Long v. State, a case cited by the State, the court discussed how the defense's initial burden was not met because the CI only supplied information to establish probable cause for the search warrant and did not provide information for the offense upon which the State relied for a conviction. The court specified that the convicting evidence was provided by the detective who searched the house. Long, 137 S.W.3d at 733; see also Jenkins v. State, No. 05-06-01440-CR, 2008 WL 1960813, at *3 (Tex. App.-Dallas May 7, 2008, no pet.) (not designated for publication) (whether an appellant possessed and sold drugs to an informant or others at other times or on different dates has no bearing on whether he possessed cocaine with the intent to deliver at the time of the search); Parks v. State, No. 2-04-412-CR, 2006 WL 668717, at *5-6 (Tex. App.-Fort Worth, July 26, 2006, pet. ref'd) (not designated for publication) (distinguishing situations where the search was witnessed firsthand from those where the CI's information was used merely for probable cause to obtain a search warrant). Appellant calls our attention to trial testimony that was heard after the rule 508 hearing to argue he carried his initial burden of proof. Appellant, for example, points out that Gordon testified at trial that appellant gave the CI a telephone number to arrange for "what we were buying from him," and that two drug buys were made during the investigation. Read in context, however, such testimony was simply background information regarding how the investigation focused on the apartment complex and apartment 107. Even if Gordon's trial testimony — and Braxton's testimony that appellant was not selling drugs out of the apartment — had been heard at the pre-trial hearing, appellant still could not make a plausible showing that the testimony of the CI was necessary to a fair determination of his guilt or innocence of the charged offense. Appellant also points to Gordon's trial testimony that appellant was charged with the intent to deliver because the police "have him [ i.e., the CI] buying drugs," and that the presence of the digital scale and the razor blade near the cocaine was "not at all" important. But Gordon's direct examination testimony contradicted this later assertion on cross-examination regarding the drug paraphernalia's relative unimportance. In addition, Ragsdale testified that digital scales and razor blades were used to break and apportion cocaine for sale and distribution. The jury also heard Ragsdale explain that based on the amount of cocaine, the way in which it was apportioned and packaged, and the presence of other paraphernalia, the cocaine was most likely intended for distribution and not personal use. And the jury heard evidence concerning the location where the cocaine was recovered and appellant's statement that "[t]his is all me." It was the role of the fact-finder to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from basic to ultimate facts. See Laster, 275 S.W.3d at 522. The evidence in this case shows the CI was neither a participant in nor a material witness to the commission of the charged offense. The testimony of the CI regarding details of previous drug transactions would not negate the evidence presented, nor would it undermine the jury's finding of guilt. We therefore conclude appellant failed to meet his burden to make a plausible showing that the testimony of the State's confidential informant was necessary to a fair determination of his guilt or innocence of the charged offense. Accordingly, the trial court did not abuse its discretion in refusing to order that the CI's identity be disclosed. We overrule appellant's third issue. We affirm the trial court's judgment.