Derrick L. Brackens v. State of Texas

Opinion

Derrick L. Brackens v. State

IN THE

TENTH COURT OF APPEALS

No. 10-00-00351-CR

No. 10-00-00352-CR

     DERRICK L. BRACKENS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 00-031-CR & #00-008-CR

MEMORANDUM OPINION

      Derrick Latroy Brackens was indicted for Manufacture or Delivery of a Substance in Penalty Group 1. Two indictments alleged that he possessed four grams or more but less than 200 grams of cocaine, with intent to deliver, on December 29, 1999, and on March 5, 2000, respectively. Brackens pled guilty to these offenses, without an agreed punishment recommendation from the State. In two Stipulations of Evidence, Brackens confessed that he “did then and there intentionally or knowingly possess, with intent to deliver, a controlled substance, namely, cocaine, in an amount of” 26.98 grams and 68.17 grams, respectively. He was sentenced to concurrent terms of fifteen years and one day in the Texas Department of Criminal Justice—Institutional Division.

      On appeal, Brackens complains (1) that the evidence is legally insufficient to support either conviction for Manufacture or Delivery of a Controlled Substance and (2) that the trial court erred in denying his motion to suppress the evidence seized March 5, 2000. Because we find legally sufficient evidence and no error in the denial, we will affirm.

BACKGROUND

Trial Court Cause No. 00-008-CR

      Brackens’s convictions stem from two separate incidents. On December 29, 1999, Brackens was a passenger in a car that was stopped because its registration sticker was expired. The driver of the vehicle, who was arrested on an outstanding felony warrant, consented to a search of the vehicle, and Brackens consented to a search of his person. The officer found two pieces of crack cocaine in Brackens’s pocket. He arrested Brackens and took him to the Freestone County Jail, where Brackens gave a voluntary statement. After his motion to suppress was denied, Brackens pled guilty without a plea bargain agreement. The court held a punishment hearing and sentenced Brackens to fifteen years and one day in prison. In our Cause No. 10-00-00352-CR, Brackens complains that the evidence was legally insufficient to support his conviction for “Manufacture or Delivery” of cocaine.

Trial Court Cause No. 00-031-CR

      The second incident occurred on March 5, 2000. The evening before, Tomas Echartea of the Fairfield Police Department obtained a search warrant for Brackens’s residence, based upon information from a confidential informant. Just after midnight, on March 5, Echartea and others executed the warrant and found crack cocaine under Brackens’s bed. He was indicted for “Manufacture or Delivery” of cocaine, four grams or more but less than two hundred grams. Brackens again moved to suppress the evidence seized, this time arguing that the search warrant affidavit was missing a word or words and, therefore, did not demonstrate probable cause. His motion was denied, and he again pled guilty without the benefit of a plea bargain agreement. He was sentenced to fifteen years and one day in prison, to run concurrently with the punishment on the other offense. In our Cause No. 10-00-00351-CR, he challenges the legal sufficiency of the evidence and the judge’s ruling on his motion to suppress evidence.

LEGAL SUFFICIENCY

      In reviewing a challenge to the legal sufficiency of the evidence, we do not weigh favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000)). Rather, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      Brackens complains that the evidence was legally insufficient to support his convictions for Manufacture or Delivery of a Controlled Substance because in each case he confessed only to possession with intent to deliver cocaine, which comported with the facts alleged in the indictment. The State argues that possession with intent to deliver is a means of committing the offense of Manufacture or Delivery of a Controlled Substance. We agree with the State.

      The Health and Safety Code defines the offense of “Manufacture or Delivery of Substance in Penalty Group 1" as follows:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.

Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003). Because Brackens confessed to possession with intent to deliver, we find the evidence legally sufficient. See Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App. 2003) (“[T]here are at least five ways to commit an offense under Section 481.112 . . . 3) possession with intent to deliver . . . . All of these methods are points along a continuum in the line of drug distribution, from its original manufacture until its physical delivery to the ultimate consumer. Thus, no matter where the actor and his individual baggie, brick, or rock of cocaine is apprehended along that continuum, the actor may be prosecuted under Section 481.112.”).

      We overrule Brackens’s legal sufficiency issue in each case.

MOTION TO SUPPRESS

      Brackens further complains that the trial court erred in denying his motion to suppress evidence resulting from the March 4 search warrant. In reviewing a ruling on a motion to suppress, we give “almost total deference to a trial court’s determination of historical facts” and review de novo the court’s application of the law of search and seizure. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). The court made no findings of fact, so we “review the evidence in a light most favorable to the court’s ruling.” Id. (citing Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000)).

      In his motion and his appellate brief, Brackens argues that the search warrant was invalid because the search warrant affidavit “inadvertently omitted” some language. The portion he complains about is in Exhibit A:

The confidential informant told affiant that within the past 48 hours of the signing of this affidavit by the affiant that the confidential informant was inside the above described residence and observed a black male known to him as Derrick and a black female known to him as Shannon what he knows to be crack cocaine.

Brackens concludes that “[t]he magistrate was not able to conclude that a probability existed that contraband was on the premises without resorting to suspicion and conjecture.” But he fails to read Exhibit A in pari materia with the rest of the search warrant affidavit.

      The affidavit to which Exhibit A is attached recites the location of a place and the names of two suspected parties—including Derrick Brackens—who control this place. The affidavit further recites:

      3.   It is the belief of your Affiant, and your Affiant hereby charges and accuses that said suspected party has possession of and is concealing at said suspected place, in violation of the laws of the State of Texas, the following described personal property, to-wit:

            (1)  All controlled substances, including but not limited to cocaine, kept or prepared in violation of the HEALTH AND SAFETY CODE, TITLE 6, CHAPTER 481, TEXAS CONTROLLED SUBSTANCES ACT.

            (2)  Any and all narcotic paraphernalia designed, used or intended for use in the ingestion, manufacture, delivery, or sale of any Controlled Substances including, but not limited to scales, and weights, and measuring devices relating to violations of the HEALTH AND SAFETY CODE, TITLE 6, CHAPTER 481, TEXAS CONTROLLED SUBSTANCES ACT.

      Considering the totality of the circumstances, the affidavit clearly asserted facts that established probable cause to believe that Brackens was in possession of cocaine. See Brown v. State, 115 S.W.3d 633, 636 (Tex. App.—Waco 2003, no pet.). The court did not err in denying Brackens’s motion to suppress.

      We overrule his second issue in Cause No. 10-00-00351-CR.

CONCLUSION

      Having overruled all of Brackens’s issues, we affirm the trial court’s judgment in each case.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed March 10, 2004

Do not publish

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