Giddings v. State

816 S.W.2d 538, 1991 WL 174350
CourtCourt of Appeals of Texas
DecidedJanuary 8, 1992
Docket05-90-00595-CR
StatusPublished
Cited by9 cases

This text of 816 S.W.2d 538 (Giddings v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giddings v. State, 816 S.W.2d 538, 1991 WL 174350 (Tex. Ct. App. 1992).

Opinions

OPINION

ENOCH, Chief Justice.

The court convicted Gerry Dwaine Gid-dings of attempted possession of cocaine in an amount of 400 grams or more and assessed punishment at twenty-five years’ confinement and a $1,000 fine. In four points of error, Giddings asserts that the evidence is insufficient to support his conviction and that the trial court erred in overruling his motion to quash his indictment. We overrule Giddings’s points of error and affirm the trial court’s judgment.

FACTS

Sergeant Rod Bray of the Dallas Police Department was handling the disposition of a prisoner’s property. The prisoner had a pager which repeatedly displayed a phone number on the pager readout. Sergeant Bray called the displayed phone number. Giddings answered and asked Sergeant Bray, “where are my kilos.” The Sergeant asked who it was and Giddings said, “You know who it is. Are you going to be able to get four kilos or not.” The Sergeant said he could only provide three, and the parties began to negotiate the price. They agreed to a total sales price of $54,000. Giddings described the vehicle he would be driving and gave a grocery store parking lot as the site for the purchase.

Two undercover officers met Giddings and his two companions at the designated parking lot. They identified each other, then conversed about whether Giddings had the money and whether Officer Loza-no, known to Giddings as Lupe, had the cocaine. Giddings displayed a large amount of money in a plastic bag to Officer Lozano and assured him that it was “54.” Giddings asked if he could escort Officer Lozano to the officer’s car to get the cocaine. Officer Lozano refused the request, walked to his vehicle, and gave the signal for the tactical officers to move in and make the arrests.

FACTUAL IMPOSSIBILITY

Giddings first complains that the evidence is insufficient to sustain his convic[540]*540tion because it was factually impossible for him to attempt to possess cocaine that did not exist. Giddings argues that the fact that the Officer had no cocaine to sell makes it factually impossible for him to attempt to possess cocaine.

Factual impossibility is not one of the labeled defenses to prosecution for an offense. Tex. Penal Code Ann. §§ 8.01-8.06 (Vernon 1974); Pelham v. State, 664 S.W.2d 382, 385 (Tex.App.—Amarillo 1983, pet. ref 'd). Rather, evidence of impossibility denies the existence of one or more of the necessary elements of the State’s case. It becomes part of the whole evidence to be considered in determining whether the State discharged its burden to prove the accused is guilty of the offense charged beyond a reasonable doubt. Pelham, 664 S.W.2d at 385; accord Flanagan v. State, 675 S.W.2d 734, 745 (Tex.Crim.App.1984) (op. on reh’g). In determining the sufficiency of the evidence, we view all of the evidence in the light most favorable to the prosecution. The evidence is sufficient if any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989).

“A person commits the offense [of criminal attempt] if, with the specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Tex. Penal Code Ann. § 15.01(a) (Vernon 1974). The element “with specific intent to commit an offense” has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result. Flanagan, 675 S.W.2d at 741. Appellant’s intent to effect the offense may be inferred from his acts. See Romo v. State, 568 S.W.2d 298, 304 (Tex.Crim.App.1977) (op. on reh’g); Whitaker v. State, 660 S.W.2d 615, 617 (Tex.App.—Corpus Christi 1983, pet. ref’d). Officer Lozano testified that he only took a bogus kilogram of cocaine to the drug sale. However, the evidence shows that in the course of several telephone conversations with Sergeant Bray, Giddings initiated the request to purchase cocaine, he requested more than the Sergeant said he could provide, and assured the Sergeant that he would arrive at the designated site with $54,000 in cash to purchase three kilograms of cocaine. Further, Giddings arrived at the site and identified himself to the undercover officer, he asked the officer if he had the cocaine and advised the officer that he had the purchase money, he displayed a large amount of currency and assured the officer that it was the agreed amount, and asked the officer if he could escort the officer to his vehicle to get the cocaine.

This evidence is sufficient for a rational trier of fact to find beyond a reasonable doubt that Giddings had the specific intent to possess more than 400 grams of cocaine and that his acts amounted to more than mere preparation that tended, but failed, to effect the intended possession. Flanagan, 675 S.W.2d at 740. We overrule Giddings’s first point of error.

PHYSICAL PROOF

In his second point of error, Giddings argues that the evidence is insufficient to sustain his conviction because the State failed to prove what it alleged. The State charged Giddings by indictment with “the specific intent to ... possess ... cocaine in an amount by aggregate weight including any adulterants or dilutants of 400 grams or more.” (Emphasis added.) Gid-dings contends that Reeves requires the State to prove the aggregate weight of the cocaine and any substances added to it which constituted adulterants or dilutants. Reeves v. State, 806 S.W.2d 540, 542 (Tex.Crim.App.1990).

In Reeves the Court of Criminal Appeals analyzed the Texas Controlled Substances Act and prior case law to determine the proof necessary to sustain a conviction for an aggravated offense of delivery of a controlled substance. The Court held that when the State is relying on a theory that adulterants and dilutants caused the aggregate weight of the cocaine to exceed 28 grams, the State must first prove that the non-cocaine substances were added to increase the bulk of the final product. [541]*541Reeves, 806 S.W.2d at 542. Reeves does not hold that, as a requisite for finding an aggravated offense for drug possession, the State must prove the cocaine was adulterated. To the contrary, we read Reeves to hold that when an indictment alleges a specific amount of controlled substance, the evidence is sufficient if the State proves either that (1) the amount of the controlled substance equals or exceeds the specific amount alleged or (2) the aggregate weight, if the State alleges and proves that adulterants or dilutants have been added, equals or exceeds the specific amount alleged. See Reeves, 806 S.W.2d at 542-545.

Giddings was charged with the aggrevated offense of attempted possession of 400 grams or more of cocaine. Applying Reeves

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Herring, Timothy
Court of Appeals of Texas, 2015
Timothy Herring v. State
Court of Appeals of Texas, 2014
in the Interest of A.L.D.H., a Child
Court of Appeals of Texas, 2012
Sergio Valadez v. State
Court of Appeals of Texas, 2012
Tullous v. State
23 S.W.3d 195 (Court of Appeals of Texas, 2000)
John Ray Tullous v. State
Court of Appeals of Texas, 2000
State v. Mays
942 S.W.2d 84 (Court of Appeals of Texas, 1997)
State v. Edmond
903 S.W.2d 856 (Court of Appeals of Texas, 1995)
Bartholomew v. State
834 S.W.2d 475 (Court of Appeals of Texas, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
816 S.W.2d 538, 1991 WL 174350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giddings-v-state-texapp-1992.