IN THE TENTH COURT OF APPEALS
No. 10-21-00264-CR
CORY DERELL ARCHIE, Appellant v.
THE STATE OF TEXAS, Appellee
From the 278th District Court Walker County, Texas Trial Court No. 29957
MEMORANDUM OPINION
Appellant, Cory Derell Archie, appeals his conviction for manufacture or delivery
of a controlled substance in an amount of one gram or more, but less than four grams.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c). In two issues, Archie contends
that: (1) the trial court erred by admitting an unrecorded incriminating statement made
in response to questions during the booking process; and (2) the evidence is legally
insufficient to support Archie’s conviction for the offense of manufacture or delivery of a controlled substance. We affirm.
Background
Pursuant to a felony warrant, Archie was arrested. A search incident to arrest
revealed numerous drugs and drug paraphernalia, including methamphetamine, ecstasy
pills cut with methamphetamine, synthetic marijuana, cocaine, prescription medications,
a digital scale, Ziploc baggies, a plastic straw modified to consume a drug, a blade used
to cut open cigars, and cigarillos. Lab tests later showed that four Ziploc baggies in a bag
carried by Archie contained 0.39 grams, 0.35 grams, 0.34 grams, and 0.27 grams of
methamphetamine, which amounted to more than one gram, but less than four grams, of
methamphetamine.
In the squad car on the way to the jail, Archie was read his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S. Ct. 1602, 1624-25 (1966). After asking
multiple times whether he understood his rights, Archie eventually responded that all
the officer had to do was read them.
Upon arriving at the jail, arresting Officer Craig Myers of the Huntsville Police
Department began the booking process, which included asking Archie questions about
height, weight, tattoos, family status, education, and alcohol and drug abuse. When
Archie was asked whether he abused alcohol or drugs, he said no. Officer Myers then
asked “what about meth?” Archie responded that he just “sells to dumb white boys,” so
that “he can overcharge them.”
Archie v. State Page 2 At trial, Archie objected to this line of questioning as violative of article 38.22 of
the Texas Code of Criminal Procedure because it was the product of custodial
interrogation that was not recorded. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a).
Archie urged the trial court to exclude his response to the question about the
methamphetamine under article 38.23 of the Texas Code of Criminal Procedure. See id.
art. 38.23. The State countered that this line of questioning was subject to the booking
exception. The trial court overruled Archie’s objection, but allowed him to make a bill of
exceptions. The trial court specifically noted that the question was a legitimate booking
question and that Archie’s statement was unsolicited and uncoerced.
The jury found Archie guilty of the charged offense of manufacture or delivery of
a controlled substance in an amount of one gram or more, but less than four grams. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c). The case proceeded to the punishment
phase. Archie pleaded “true” to an enhancement paragraph in the indictment
referencing his prior felony conviction for burglary of a habitation. After hearing the
testimony of several witnesses, the trial court assessed Archie’s punishment at twenty-
five years’ imprisonment with $180 in restitution. This appeal followed.
Legal Sufficiency
We first consider Archie’s second issue, in which he challenges the sufficiency of
evidence to support his conviction for the offense of manufacture or delivery of a
controlled substance in an amount of one gram or more, but less than four grams. See id.
Archie v. State Page 3 § 481.112(a), (c). Specifically, Archie contends that the State failed to produce any
evidence establishing an intent to deliver.
STANDARD OF REVIEW
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S. Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
Archie v. State Page 4 We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
APPLICABLE LAW
As stated earlier, Archie was charged with manufacture or delivery of a controlled
substance--methamphetamine—in an amount of one gram or more, but less than four
grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c). Under a hypothetically-
correct jury charge, the State was required to prove beyond a reasonable doubt that
Archie: (1) knowingly (2) possessed, (3) with intent to deliver, (4) one gram or more, but
less than four grams of methamphetamine. See id. § 481.112(a), (c). Archie only
challenges the element of intent to deliver.
Intent to deliver may be established by expert testimony, such as testimony from
experienced law enforcement, and circumstantial evidence, such as evidence of an
accused’s possession of the contraband. See Moreno v. State, 195 S.W.3d 321, 325 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d); Patterson v. State, 138 S.W.3d 643, 650 (Tex.
App.—Dallas 2004, no pet.). Factors courts have considered include the following: (1)
Archie v. State Page 5 the nature of the location where the accused was arrested; (2) the quantity of contraband
in the accused's possession; (3) the manner of packaging; (4) the presence or lack thereof
of drug paraphernalia (for either use or sale); (5) the accused's possession of large
amounts of cash; and (6) the accused's status as a drug user. Moreno, 195 S.W.3d at 325-
26 (citing Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Williams v. State, 902
S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)). The number of factors
present is not as important as the logical force the factors have in establishing the
elements of the offense. Id. at 326 (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—
Houston [1st Dist.] 1994, pet. ref’d)). “An oral expression of intent is not required.” Id.
Further, intent to deliver is a fact question for the trier of fact to resolve, and it may be
inferred from the acts, words, or conduct of the accused. See Taylor, 106 S.W.3d at 831.
DISCUSSION
In the instant case, Officer Myers testified that, on the date in question, he was
attempting to serve a felony warrant on Archie. Officer Myers learned that Archie was
inside the residence of a “Mr. Freeman,” who was known to Officer Myers based on
“previous interactions.” While Officer Myers trying to serve the felony warrant, Archie
fled. Officer Myers and another officer chased Archie to the back side of the residence
and were able to place him in handcuffs.
After arresting Archie, Officer Myers conducted a search incident to arrest and
found “numerous items of drug paraphernalia, as well as drugs, on his person.” Archie
Archie v. State Page 6 told Officer Myers that he had a backpack that contained K-2, a synthetic marihuana.
State’s Exhibit 5 showed a big bag and a smaller bag of K-2 that was seized from Archie.
In addition, Archie had a bag on his person that contained “a glass jar with a straw, a
[digital] scale, lid, a bag with multiple smaller baggies on the inside, a small bag with
what appears to be drug residue in it, and a cutter.” Officer Myers also recounted that
prescription pills later identified as cyclobenzaprine hydrochloride, a muscle relaxer,
were also found inside the bag. Officer Myers confirmed that it is common for
prescription medications to be sold on the street. Other bags inside the bag contained
what appeared to be methamphetamine, cocaine powder, and two tablets of “Street
Ecstasy.” Four different plastic bags seized from the bag were tested. Lab results
confirmed that an aggregation of contents of the four plastic bags exceeded one gram of
methamphetamine. Specifically, the four plastic bags contained substantially similar
amounts—0.39 grams, 0.35 grams, 0.34 grams, and 0.27 grams of methamphetamine,
respectively. On cross-examination, Officer Myers confirmed that Archie: (1) had stated
that he was homeless; and (2) did not have a significant amount of cash on his person at
the time of arrest.
City of Huntsville narcotics detective Lance Schulz acknowledged that a
significant indicator of dealing is “a larger amount of one drug,” but he also emphasized
that: “It’s typical for dealers to not only deal in one particular drug so they may have
various types of drugs with them.” Detective Schulz echoed Officer Myers’s testimony
Archie v. State Page 7 that it is common for prescription medications to be sold or delivered at the street level.
To differentiate a user from a dealer, Detective Schulz noted that “[a] dealer will typically
have packaging for resale. You’ll find a digital scale, things of that nature.” He also
stated that it is “really not typical for a user to have multiple baggies, but I guess it is
possible.” Moreover, when asked “if you found half a gram of meth and a baggie, another
half a gram of meth and a baggie exactly the same, another half gram weighed out and
the same type of bag, more of those bags, a straw, two separate things of prescription
pills and the same bag, a bag of white powder in the same bag, as well as the digital scales
and other items of paraphernalia, would you then think possibly dealer,” Detective
Schulz answered in the affirmative. Furthermore, Officer Myers stated that, during
booking, Archie denied abusing drugs and admitted that he committed the charged
offense when he stated that he just “sells to dumb white boys,” so that “he can overcharge
them.” 1 In addition, there is no evidence in the record that Archie was under the
influence of drugs at the time of his arrest.
The testimony at trial touches on several of the factors outlined in Moreno. See 195
S.W.3d at 325-26. Furthermore, the logical inference to be drawn from this set of facts is
that the drugs were possessed with the requisite intent to deliver. See id. at 325-26; see
1 Even if Archie’s statement during the booking process was improperly admitted, in our sufficiency review, we are to consider evidence that was improperly admitted before the jury, as well as evidence that was properly admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“Our review of ‘all of the evidence’ includes evidence that was properly and improperly admitted.”).
Archie v. State Page 8 also Brooks v. State, No. 10-07-00309-CR, 2011 Tex. App. LEXIS 1150, at **9-10 (Tex. App.—
Waco Feb. 16, 2011, pet. ref’d) (mem. op., not designated for publication) (concluding that
the logical force of the evidence showing that Brooks had more drugs than a user would
normally use at one time, Brooks possessed three separate types of drugs, Brooks did not
appear to be under the influence of any drugs at the time of arrest, Brooks did not have
in his possession the tools necessary to ingest crack cocaine himself, and expert testimony
that the evidence was consistent with what a dealer would have in his possession
established the requisite intent to deliver).
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that the evidence was sufficient for the jury to support Archie’s conviction for
manufacture or delivery of a controlled substance in an amount of one gram or more, but
less than four grams, of methamphetamine with the intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(a), (c); Zuniga, 551 S.W.3d at 732-33; Moreno, 195 S.W.3d at
325-26; see also Brooks, 2011 Tex. App. LEXIS 1150, at **9-10. And to the extent that the
evidence conflicts, we are to defer to the jury’s resolution of such inconsistencies in the
evidence. See Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State,
316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give
deference to a jury’s decision regarding what weight to give contradictory testimonial
evidence because the decision is most likely based on an evaluation of credibility and
Archie v. State Page 9 demeanor, which the jury is in a better position to judge.”). We overrule Archie’s second
issue.
Admissibility of Incriminating Statement Made During Booking
In his first issue, Archie contends that the trial court abused its discretion by
permitting Officer Myers to testify to the incriminating statement regarding the sale of
methamphetamine to “white boys” that was made in response to the question during the
booking process. Assuming, without deciding, that the admission of Archie’s statement
was error, we review the admission for harm.
Texas Rule of Appellate Procedure 44.2(b) provides that a non-constitutional
evidentiary error “that does not affect substantial rights must be disregarded.” TEX. R.
APP. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Substantial
rights are not affected by the erroneous admission of evidence “if the appellate court,
after examining the record as a whole, has fair assurance that the error did not influence
the jury, or had but a slight effect.” Motilla, 78 S.W.3d at 355; see Graff v. State, 65 S.W.3d
730, 741 (Tex. App.—Waco 2001, pet. ref’d). In assessing the likelihood that the jury's
decision was adversely affected by the error, the appellate court should consider
everything in the record, including any testimony or physical evidence admitted for the
jury's consideration, the nature of the evidence supporting the verdict, the character of
the alleged error, and how it might be considered in connection with other evidence in
the case. Motilla, 78 S.W.3d at 355. The reviewing court may also consider the jury
Archie v. State Page 10 instructions, the State's theory and any defensive theories, closing arguments, and even
voir dire, if applicable. Id. at 355-56. Furthermore, the reviewing court may consider
whether the State emphasized the error. Id. at 356.
Having previously considered the record as a whole in our discussion of Archie’s
second issue, we have fair assurance that, even assuming the incriminating statement was
erroneously admitted, it did not have a substantial and injurious effect or influence on
the jury's verdict, especially given there was ample, unobjected-to evidence that supports
Archie’s conviction. We also note that the State did not emphasize the incriminating
statement at trial. In fact, the State, in its opening and closing argument, focused
primarily on the evidence seized during the arrest. The State did not mention the
statement at all during opening statements, Officer Myers briefly mentioned it during
direct examination, and the State only mentioned the statement once in it its closing
argument and only in response to defense counsel’s reference to the statement. We
conclude that any error in admitting the complained-of evidence did not affect a
substantial right and, therefore, must be disregarded. See TEX. R. APP. P. 44.2(b). We
overrule Archie’s first issue.
Conclusion
We affirm the judgment of the trial court.
Archie v. State Page 11 STEVE SMITH Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 27, 2022 Do not publish [CRPM]
Archie v. State Page 12