No. 05-06-00028-CR
Opinion Issued March 23, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-81761-02.
Before Justices WHITTINGTON, FRANCIS, and LANG.
MARK WHITTINGTON, Justice.
A jury convicted Loai Tyseer Sarabi of delivery of cocaine in a drug-free zone in the amount of one gram or more, but less than four grams. The trial court assessed punishment at ten years' imprisonment, probated for ten years, and a $10,000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
On October 2, 2001, McKinney narcotics officers observed a confidential informant (C.I.) purchase cocaine from appellant. Sergeant Joe Ellenburg testified the C.I. had arranged to meet appellant in the parking lot of a restaurant. Prior to the purchase, the C.I. told Ellenburg the person delivering the drugs was named "Loai," but he did not give a last name. On the day of the drug buy, Ellenburg searched the C.I. and his vehicle for weapons, drugs, or money before the purchase took place. Ellenburg then gave the C.I. $140 for the buy, placed an audio transmitter or "body mike" on the C.I., and sent him to the meeting place. Ellenburg and his partner observed the transaction from inside the restaurant while two other officers monitored the audio recording equipment from inside a police vehicle nearby. Ellenburg testified he watched the transaction through the restaurant's window from about fifty feet away and he saw appellant conduct the drug transaction with the C.I. Ellenburg testified he saw a vehicle stop near the C.I.'s car. Appellant got out of the passenger seat and walked to the driver's side window of the C.I.'s car. After appellant and the C.I. talked for about one minute, appellant handed the C.I. "something," and the C.I. handed appellant money. Appellant returned to his vehicle and left the parking lot. The officers did not arrest appellant at that time because the C.I. was negotiating the purchase of a kilo of cocaine from appellant at a future date. Ellenburg testified that after the transaction, he and his partner followed the C.I. to a prearranged location, where they searched the C.I. and his vehicle, retrieved a plastic bag the C.I. had obtained from appellant, removed the audio transmitter from the C.I., and released him for the day. An audiotape of the drug transaction was played for the jury. Ellenburg testified the plastic bag contained three smaller baggies with a white powder substance inside. Later analysis showed the baggies contained 1.89 grams of cocaine. About one week after the drug transaction, the C.I. contacted Ellenburg and said appellant had been arrested. Ellenburg searched book-in records for anyone with the first name "Loai" who had been arrested. Ellenburg discovered that appellant had been arrested on October 10, 2001 in Richardson. Ellenburg obtained appellant's book-in photograph and showed it to the C.I. The C.I. identified appellant as the person he knew as "Loai" and who had delivered the cocaine on October 2, 2001. Ellenburg testified the cellphone number used by the C.I. to set up the drug buy was registered to appellant. The records for appellant's cellphone number showed appellant received a call from the C.I. on September 28, 2001, two days before the drug transaction. Detective Pete Copin testified he was with Ellenburg when the C.I. was searched, both before and after the drug transaction. The C.I. had no drugs, weapons, or money on his person or in his vehicle, except for the money Ellenburg gave the C.I. to purchase the drugs. Copin testified he witnessed the entire transaction from inside the restaurant while sitting across the table from Ellenburg. Copin saw a vehicle approach the C.I.'s car. A man exited the passenger seat and walked to the C.I. There were "hand movements" between the man and the C.I. The man "leaned" in the C.I.'s vehicle for about forty seconds, then the man got back into his vehicle and left the parking lot. Copin testified he had a better view of the transaction than did Ellenburg, and he did not clearly see the suspect nor did he see cash or drugs exchanged between the man and the C.I. David Phillips testified he worked as a C.I. for Ellenburg in exchange for having the charges in felony cases for possession and delivery of "shrooms" dismissed. Phillips testified he knew appellant before he began working with the police, having met appellant at least twice before. Phillips did not know appellant's last name at that time, he only knew appellant's first name and cellphone number. Phillips identified appellant at trial as the individual who delivered cocaine to him on October 2, 2001. Phillips testified he called appellant's cellphone number a few days before the transaction and said he wanted to buy an "eight ball" now and possibly a "kilo" later on. Appellant said okay and agreed to meet in a restaurant parking lot. After Phillips set up the transaction with appellant, he called Ellenburg. Phillips met with Ellenburg about one hour before the transaction. Ellenburg put a microphone on Phillips and gave him money to buy the drugs. Phillips drove to the restaurant parking lot and waited. When appellant arrived, he walked to the driver's side window of Phillips's car and gave Phillips a plastic bag. Phillips asked appellant if "it was good," and appellant said yes. Phillips handed appellant the money and asked appellant if he could get a kilo of cocaine. Appellant said, "[y]es, we'll talk about that another day." Appellant got back in his vehicle and left the parking lot. Phillips testified he drove to a prearranged location and gave the plastic bag to Ellenburg and other officers. Phillips testified that two days later, he talked with appellant about getting a kilo of cocaine. But when Phillips called appellant several days after that, he was told appellant had been arrested in Richardson. Phillips called Ellenburg and told him the buy for a kilo of cocaine could not be done because appellant had been arrested. Phillips further testified he was not able to "work off" his second felony case, so he pleaded guilty to delivery of a pound of mushrooms and received a sentence of eight years deferred probation. Appellant did not testify or present any evidence at trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). 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.). 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. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally delivered cocaine in an amount of one gram or more but less than four grams in a drug-free zone. See Tex. Health Safety Code Ann. §§ 481.112(a), (c), 481.134(a)(5) (Vernon 2003 Supp. 2006). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). Affirmative links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). 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). Discussion
Appellant argues the evidence is legally and factually insufficient because the witnesses' identification of appellant was weak, conflicting, and unreliable. Specifically, appellant asserts both Ellenburg and Copin gave conflicting testimony about the identification of the person who delivered the cocaine, and appellant's identification as the suspect was not made until days after the drug transaction was complete. Appellant argues Phillips was biased in his identification of appellant because he had felony charges he wanted dismissed, and he did not know appellant's last name. Appellant also argues Phillips misidentified him because Phillips was only shown one photograph rather than a photographic lineup. The State responds that the evidence is legally and factually sufficient to support the conviction because any inconsistencies or conflicts in the testimony was for the jury to resolve. Phillips identified appellant as the person who delivered cocaine to him on October 2, 2001. Phillips knew appellant prior to the transaction, called appellant's cellphone number to arrange the delivery of the cocaine, and had a face-to-face transaction with appellant. The cellphone number Phillips used to arrange the delivery of the cocaine was registered to appellant. Prior to the actual delivery of the cocaine, Phillips told the police the first name of the person who would be delivering the drugs was "Loai." Phillips also notified the officers that "Loai" had been arrested in another city before a second delivery transaction could be finalized. Ellenburg identified appellant as the person he saw deliver cocaine to Phillips in exchange for cash. However, Copin, who was with Ellenburg observing the transaction, testified he had a better view of the transaction than did Ellenburg and he did not clearly see the individual who delivered the cocaine to Phillips. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We may not substitute our own determination for that of the jury. See Marshall, 210 S.W.3d at 625; see also Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Moreover, the issue of whether appellant may have been misidentified due to the single photo display was an issue for the jury to weigh and evaluate. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254 (1977); Johnigan v. State, 69 S.W.3d 749, 753 (Tex.App.-Tyler 2002, pet. ref'd). Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for possession of methamphetamine. See Watson, 204 S.W.3d at 415; Evans, 202 S.W.3d at 166; Lane, 151 S.W.3d at 191-92. We overrule appellant's points of error. We affirm the trial court's judgment.