Nos. 05-05-01345-CR, 05-05-01346-CR, 05-05-01347-CR, 05-05-01348-CR
Opinion Filed July 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-71912-TP, F02-22947-JP, F02-50468-JP, F03-58330-WP. Affirm in 05-05-01345-Cr and 05-05-01348-Cr and Dismiss in 05-05-01346-Cr and 05-05-01347-CR.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
Opinion By Justice RICHTER.
Corey Lujuan Roberson was convicted of possession of codeine in an amount of 400 grams or more, two offenses of possession of marijuana in amounts of five pounds or less but more than four ounces, and possession with intent to deliver 3,4-methylenedioxy methamphetamine in an amount of one gram or more but less than four grams. Punishment was assessed at two years' confinement in a state jail facility for each marijuana case and seven years' imprisonment for the codeine and 3,4-methylenedioxy methamphetamine cases. In two issues, appellant contends the evidence is factually insufficient to support the jury's verdict and the trial court's decision to proceed with adjudication of guilt. We affirm the trial court's judgment in cause nos. 05-05-01345-CR and 05-05-01348-CR and dismiss the appeals in cause nos. 05-05-01346-CR and 05-05-01347-CR.
Cause Nos. 05-05-01345-CR and 05-05-01348-CR
In these cases, a jury convicted appellant of possession of codeine in an amount of 400 grams or more and possession of marijuana in an amount of five pounds or less but more than four ounces. The jury assessed punishment at seven years' imprisonment for possession of codeine and two years' confinement in a state jail facility for possession of marijuana. Background
At about 10:00 p.m. on December 9, 2003, Dallas police officers conducted surveillance on a house located at 2752 Modree in response to citizen complaints about drug activity at that location. Officer Jaime Castro testified that during the twenty minutes he watched the house, he saw numerous individuals knock on the door of the residence, go inside and stay less than a minute, then come out and walk away. Each time someone knocked, a man, later identified as Charles Armstead, opened the door and let them inside. There was a wheelchair ramp at the front of the house, and Castro saw several individuals go to a window on the west side of the house. Officer Lorea went to the west side of the residence and looked through a bedroom window. Castro and other officers went to the front door. Lorea radioed Castro that he saw people moving around in the house. He also saw someone put a shoebox and a rifle under the bed, and saw drugs in plain view in the bedroom. Castro knocked on the front door. Appellant, who was in a wheelchair, opened the front door and allowed the officers inside. Both appellant and Armstead were in the living room when the officers entered the house. When Castro told appellant he knew there were drugs and firearms in the bedroom, appellant said, "This is my house. This is my stuff. I don't want anybody caught up in my mess." Castro testified the officers searched the house and found in the west-side bedroom three gallon-size ziplock bags of marijuana, seven plastic bottles filled with codeine, a loaded AK-47 assault rifle, a shoebox containing marijuana, glass pimento jars filled with codeine, two scales, empty baggies, utility bills for the residence in appellant's name, mail in appellant's name addressed to the residence, a walker, and appellant's jacket. They also found several pimento jars containing codeine in the kitchen and another loaded AK-47 assault rifle and ammunition in the hall area. In total, 860 grams of codeine and 10.3 ounces of marijuana were found, along with seeds capable of germination. Castro testified a woman and another man were found inside the house, but they were released at the scene. Charles Armstead testified he and appellant lived in the house. Armstead testified the bedroom in which the drugs were found was an extra room that was used for storage. Armstead testified the drugs and guns found in the house belonged to him and not appellant, he was the only person selling drugs from the house, and appellant did not know anything about the drugs. Armstead admitted he had testified at a prior hearing that appellant was the person selling drugs from the house and everything in the house belonged to appellant. Armstead also testified he had pleaded guilty to possession of the drugs that were found in the house and received probation. Appellant testified he lived in the house with Armstead and a man named Dujuan, who was not at the house the night the police arrived. Appellant denied making any statements to Castro that everything in the house was his, and denied that the room in which the drugs were found was his bedroom. Appellant testified his bedroom was at the back of the house on the east side, not the west side bedroom where the drugs were found and that he had been in his bedroom all evening. When he heard someone pounding on the door, he went to the front of the house and opened the door. Appellant testified he had no idea drugs were being sold from the house until the officers came. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed codeine in an amount of 400 grams or more and that appellant knowingly or intentionally possessed marijuana in an amount of five pounds or less but more than four ounces. See Tex. Health Safety Code Ann. §§ 418.118(a), (e), 481.121(a), (b)(3) (Vernon 2003). To do so, the State had to prove appellant exercised care, control, or management over the codeine and marijuana and knew they were contraband. See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The jury was instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). Discussion
Appellant argues the evidence is factually insufficient because his testimony contradicted Castro's testimony, Armstead admitted the drugs were his, and appellant knew nothing about the drugs. Appellant asserts he did not live at the house, but he had the utilities in his name to receive a discounted rate due to his medical disability. The State responds that the evidence is factually sufficient to support appellant's convictions for possession of codeine and marijuana. There was conflicting evidence presented. Castro testified appellant admitted he lived in the house and stated everything in the house belong to him, including the codeine and marijuana found in a bedroom. Castro retrieved appellant's jacket from the closet in the bedroom where the drugs were found. Utility bills and other mail addressed to appellant at that residence was also found in the bedroom where the drugs were found. Armstead initially testified the drugs belonged to him and appellant did not know Armstead was selling drugs from the house. Later, Armstead admitted he had testified in another proceeding that the drugs belonged to appellant. Appellant admitted he lived in the house with Armstead, but claimed he knew nothing about the drugs until the police arrived. Appellant essentially asks us to believe his evidence over the State's. However, the jury was the exclusive judge of the facts provided and of the weight to be given to the testimony, and it was the jury's role to resolve the conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's finding that appellant knowingly or intentionally possessed codeine and marijuana. See Lane, 151 S.W.3d at 191-92; Zuniga, 144 S.W.3d at 484-85. We resolve appellant's issues against him. Cause Nos. 05-05-01346-CR and 05-05-01347-CR
In these cases, appellant pleaded guilty to possession of marijuana in an amount of five pounds or less but more than four ounces and possession with intent to deliver 3,4-methylenedioxy methamphetamine in an amount of one gram or more but less than four grams. Pursuant to plea agreements in each case, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $2000 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision by committing a new offense. Following a hearing, the trial court adjudicated appellant guilty in each case and sentenced him to two years' confinement in a state jail facility in the marijuana case and seven years' imprisonment in the 3,4-methylenedioxy methamphetamine case. On appeal, appellant argues the evidence was factually insufficient to support the trial court's decision to adjudicate guilt and asks that the revocations be set aside. The State responds that the trial court's decision to proceed with adjudication of guilt is not an appealable issue. We agree with the State. Appellant's complaints challenge the trial court's decision to adjudication guilt, which is not permitted. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Accordingly, we dismiss the appeals for want of jurisdiction. Conclusion
We affirm the trial court's judgments in cause nos. 05-05-01345-CR and 05-05-01348-CR. We dismiss the appeals in cause nos. 05-05-01346-CR and 05-05-01347-CR for want of jurisdiction.