Jenkins v. State

788 S.W.2d 677, 1990 Tex. App. LEXIS 875, 1990 WL 48712
CourtCourt of Appeals of Texas
DecidedApril 17, 1990
DocketNo. 6-88-058-CR
StatusPublished
Cited by4 cases

This text of 788 S.W.2d 677 (Jenkins 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
Jenkins v. State, 788 S.W.2d 677, 1990 Tex. App. LEXIS 875, 1990 WL 48712 (Tex. Ct. App. 1990).

Opinions

GRANT, Justice.

Carl Jenkins appeals from a conviction in a jury trial for the delivery of a simulated controlled substance. Jenkins’ punishment was assessed at forty years’ confinement in the penitentiary.

Jenkins contends that the evidence is insufficient to show that he ever expressly represented the substance to be cocaine and that the evidence is insufficient because the record fails to show that he knew that the substance being delivered was not a controlled substance.

On May 29, 1988, Officers Steven Howard and Margaret Zoch, along with ten other officers of the Houston Police Department, were assigned to work an undercover operation in the Aces Home area of Houston. At approximately 1:45 p.m., Officer Howard drove into the parking lot of a grocery store that was one of the several locations targeted for police operations. There were several cars and several men in the parking lot. Officer Howard asked one of the men where he could get some rock. He was then directed to a gray Monte Carlo, which was parked in the same lot. He pulled up to the passenger’s side of the Monte Carlo and asked Jenkins, who was in the Monte Carlo, if he knew where he could get some rock. Jenkins then asked Howard what he wanted, and Howard replied that he wanted to get a twenty-cent rock. According to the testimony, a twenty-cent rock is street terminology that means twenty dollars worth of crack cocaine. In response to Howard’s request, Jenkins removed a small pillbox from his lap and poured a portion of the contents into his hands. He then handed Howard one of the rocks and accepted twenty dollars from Howard. After the money was exchanged for the rock, Howard asked if this was good rock. Jenkins replied, “Yea man, this is some good rock.”

Howard testified that the rock delivered by appellant appeared to be crack cocaine and that the price of the rock corresponded to the price of authentic crack cocaine. A field test was performed on the rock, and it was found not to be cocaine. The State’s chemical expert also testified that the rock was not cocaine although its visual appearance was that of rock cocaine. A series of ultraviolet tests indicated that the substance contained procaine or novocaine.

The indictment charged that Jenkins “intentionally and knowingly delivered] by actual transfer to S. HOWARD a simulated controlled substance and the defendant expressly represented the substance to be a controlled substance, namely COCAINE.”

Jenkins contends that there is insufficient evidence to support the jury’s finding that he expressly represented the substance to be cocaine. Where a defendant challenges the sufficiency of the evidence, the standard of review is whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The sufficiency of the evidence to support a conviction must be viewed in light of the charge the jury was given, because a trial court’s charge explains to the jury under what circumstances and of what offense it is authorized to convict. Stephens v. State, 717 S.W.2d 338 (Tex.Crim.App.1986). In the present ease, the jury was charged:

A person commits an offense if he intentionally or knowingly delivers a sim[679]*679ulated controlled substance, and the person expressly represents the substance to be a controlled substance.
Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, on or about the 29th day of May, 1988, the defendant, Carl Jenkins did then and there unlawfully, intentionally or knowingly deliver by actual transfer to S. Howard, a simulated controlled substance and that the defendant expressly represented the substance to be a controlled substance, namely, cocaine, then you will find the defendant guilty as charged in the indictment.

(Emphasis added).

A defendant commits the offense of delivery of a simulated controlled substance if:

(a) A person commits an offense if the person knowingly or intentionally manufactures with the intent to deliver or delivers a simulated controlled substance and the person:
(1) expressly represents the substance to be a controlled substance;
(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance; or
(3) states to the person receiving or intended to receive the simulated controlled substance that the person may successfully represent the substance to be a controlled substance to a third party.

Tex.Health & Safety Code Ann. § 482.002(a) (Vernon 1990), formerly Tex. Rev.Civ.Stat.Ann. art. 4476-15b, § 2(a).

The State chose Subsection (a)(1) of the three alternatives to describe the allegation against Jenkins. Subsection (a)(1) requires an express representation; whereas Subsection (a)(2) would allow an implicit representation, i.e., a representation capable of being understood from something else though unexpressed. For example, if Jenkins had never made any statement at all, but had sold the substance to Howard in response to his request for “twenty-cent rock,” then Jenkins could not have been convicted of committing an offense under Subsection (a)(1), but he could have been charged under Subsection (a)(2).

It is undisputed that Jenkins did not use the term cocaine during the transaction. Howard used the term rock and twenty-cent rock in negotiating the purchase, and after the money and substance had changed hands, Howard testified that Jenkins made a reference to the substance as being “some good rock.” Although Jenkins’ only usage of the term rock was after the transaction, which would not be a part of the inducement, the statute does not indicate at what stage of the transaction the representation must be made. The question before this Court, therefore, is whether the use of the term rock amounts to an express representation that the substance was cocaine.

The court in Holliman v. State, 692 S.W.2d 120 (Tex.App.-Waco 1985, pet. ref'd), held that the term weed could lead a reasonable person to believe the substance which was offered was the controlled substance marihuana. However, that case was decided under Article 4476-15b, § 2(a)(2).

In Boykin v. State, 779 S.W.2d 134 (Tex.App.-Houston [14th Dist.] 1989, pet. granted), in a factual posture similar to our case, the court held that the use of the term rock was insufficient to establish that the appellant in that case expressly represented the substance to be cocaine. More recently, in Simpson v. State, 787 S.W.2d 539 (Tex.App.-Houston [1st Dist.] 1990), the Boykin decision was criticized and not followed because the court disagreed with Boykin’s, interpretation of express representation. We agree with the position taken by the court in the Simpson court.

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

Related

Jenkins v. State
820 S.W.2d 178 (Court of Criminal Appeals of Texas, 1991)
Boykin v. State
818 S.W.2d 782 (Court of Criminal Appeals of Texas, 1991)
Cleveland v. State
814 S.W.2d 140 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
788 S.W.2d 677, 1990 Tex. App. LEXIS 875, 1990 WL 48712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-state-texapp-1990.