IN THE TENTH COURT OF APPEALS
No. 10-07-00309-CR
KELVIN KIANTA BROOKS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2007-844-C1
MEMORANDUM OPINION
Kelvin Kianta Brooks was charged with the offenses of possessing with intent to
deliver more than four but less than 200 grams of crack cocaine and possession of a
controlled substance (ecstasy). TEX. HEALTH & SAFETY CODE ANN. §§ 481.112, 481.116
(Vernon Supp. 2009). A jury convicted Brooks of both offenses and assessed
punishment at twenty-five years and ten years in prison, respectively.1
1 The memorandum opinion issued by this Court involved both convictions in Cause Numbers 10-07- 00309-CR and 10-07-00310-CR. However, only the conviction in No. 10-07-00309-CR (possession with intent to deliver crack cocaine) was included in the opinion on the petition for discretionary review issued by the Court of Criminal Appeals. Therefore, this opinion relates only to No. 10-07-00309-CR. On direct appeal, this Court found that the evidence was legally sufficient to
sustain Brooks’ convictions, but reversed the judgment on the possession with intent to
deliver crack cocaine on the ground that the evidence was factually insufficient for the
jury to have determined that Brooks possessed the crack cocaine with the intent to
deliver. See Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. LEXIS 7364 at *11 (Tex.
App.—Waco Oct. 1, 2008) (mem. op., not designated for publication). However, the
Court of Criminal Appeals determined that the only standard for determining the
sufficiency of evidence is the standard set forth in Jackson v. Virginia and a complaint
alleging factual insufficiency is no longer valid. See Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010) (plurality op.) Accordingly, the Court of Criminal Appeals
reversed this Court’s judgment and remanded the case to this Court for a
reconsideration of the sufficiency of the evidence using the Jackson v. Virginia standard.
On remand, we affirm.
We directed the parties to supplement their briefing and now again address
Brooks’s contentions and the record under the standard outlined in Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
In the Texas Court of Criminal Appeals's disposition of Brooks, the Court stated
its reasoning for the necessity of a remand:
[W]e could decide that the court of appeals necessarily found that the evidence is legally insufficient to support appellant's conviction when it decided that the evidence is factually insufficient to support appellant's conviction. However, primarily because the 'confusing' factual-sufficiency standard may have skewed a rigorous application of the Jackson v. Virginia standard by the court of appeals, we believe that it is appropriate to dispose of this case by sending it back to the court of appeals to reconsider
Brooks v. State Page 2 the sufficiency of the evidence to support appellant's conviction under a proper application of the Jackson v. Virginia standard.
Brooks, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240, at *58.
Standard of Review for Sufficiency
In reviewing the sufficiency of the evidence to support a conviction, we view all
of the evidence in the light most favorable to the prosecution in order to determine
whether 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, 2789, 61
L. Ed. 2d 560 (1979); Brooks, 323 S.W.3d at 899. We consider all of the evidence admitted
at trial, even improperly admitted evidence, when performing this sufficiency review.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury’s
determinations of the witnesses’s credibility and the weight to be given their testimony
because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899.
The Facts
The evidence showed that two police officers went into a bar to investigate a
report that someone matching Brooks’s description was there with a gun. The officers
asked Brooks to step outside, but Brooks ran from the officers. He was seen throwing
two baggies toward a pool table just before he was tased by one of the officers. One
baggie was located under the pool table. A second baggie was found in the ball return
of the pool table. The first baggie contained a small amount of marijuana (about 3
grams). The other baggie contained two other baggies—one held 4.72 grams of crack
cocaine and the other held six ecstasy tablets that weighed 1.29 grams. Brooks also had
Brooks v. State Page 3 a cell phone and, according to one of the officers, “a couple of dollars.” Brooks testified
at trial that he had "like $30 or $40" on him. At that time, Brooks did not appear to be
under the influence of narcotics, and he was not in possession of any drug
paraphernalia that could have been used for smoking crack cocaine. No gun was
located. The police gave Brooks’s cell phone and money to an acquaintance of Brooks
before they took him to jail.
An experienced Waco Police Department drug-enforcement investigator
(Thompson) testified that the bag containing the 4.72 grams of crack cocaine contained
“two larger size rocks and then maybe a smaller one” and a useable amount of
“crumbs.” He testified that each of the two large rocks weighed at least two grams and
the other one weighed “a gram and a half or something like that.” Thompson testified
that “he would say” that 4.72 grams was a “dealer amount,” which could have been cut
up into 23 or 24 rocks using a thumbnail or sharp object. He testified that 4.72 grams of
crack cocaine is worth about $470.
Thompson stated that a “typical quantity” that a dealer would have would be
more than two rocks and that he “would think” that someone with more than a gram
would be a dealer. Thompson testified that it is not “typical” for drug users to be in
possession of a large amount of drugs. He rarely had encountered many people that
are users that have more than one or two small rocks in their possession because they
generally use it as soon as they get it. Thompson also testified that typically, most crack
cocaine users would have some type of paraphernalia in their possession with which to
Brooks v. State Page 4 smoke the crack cocaine. He further stated that typically dealers do not carry
paraphernalia because they do not generally use their product.
Thompson described other factors which could indicate that a person is a dealer:
(1) possession of five, ten, or twenty dollar bills; (2) names in the person's cell phone; (3)
possession of some document identifying who owes what; (4) possession of a weapon;
or (5) others observed the person trying to sell drugs. Because the money and the cell
phone were not retained by the arresting officers, and therefore could not be searched
or introduced as evidence, none of these types of evidence were introduced in Brooks’s
case.
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IN THE TENTH COURT OF APPEALS
No. 10-07-00309-CR
KELVIN KIANTA BROOKS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2007-844-C1
MEMORANDUM OPINION
Kelvin Kianta Brooks was charged with the offenses of possessing with intent to
deliver more than four but less than 200 grams of crack cocaine and possession of a
controlled substance (ecstasy). TEX. HEALTH & SAFETY CODE ANN. §§ 481.112, 481.116
(Vernon Supp. 2009). A jury convicted Brooks of both offenses and assessed
punishment at twenty-five years and ten years in prison, respectively.1
1 The memorandum opinion issued by this Court involved both convictions in Cause Numbers 10-07- 00309-CR and 10-07-00310-CR. However, only the conviction in No. 10-07-00309-CR (possession with intent to deliver crack cocaine) was included in the opinion on the petition for discretionary review issued by the Court of Criminal Appeals. Therefore, this opinion relates only to No. 10-07-00309-CR. On direct appeal, this Court found that the evidence was legally sufficient to
sustain Brooks’ convictions, but reversed the judgment on the possession with intent to
deliver crack cocaine on the ground that the evidence was factually insufficient for the
jury to have determined that Brooks possessed the crack cocaine with the intent to
deliver. See Brooks v. State, No. 10-07-00309-CR, 2008 Tex. App. LEXIS 7364 at *11 (Tex.
App.—Waco Oct. 1, 2008) (mem. op., not designated for publication). However, the
Court of Criminal Appeals determined that the only standard for determining the
sufficiency of evidence is the standard set forth in Jackson v. Virginia and a complaint
alleging factual insufficiency is no longer valid. See Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010) (plurality op.) Accordingly, the Court of Criminal Appeals
reversed this Court’s judgment and remanded the case to this Court for a
reconsideration of the sufficiency of the evidence using the Jackson v. Virginia standard.
On remand, we affirm.
We directed the parties to supplement their briefing and now again address
Brooks’s contentions and the record under the standard outlined in Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
In the Texas Court of Criminal Appeals's disposition of Brooks, the Court stated
its reasoning for the necessity of a remand:
[W]e could decide that the court of appeals necessarily found that the evidence is legally insufficient to support appellant's conviction when it decided that the evidence is factually insufficient to support appellant's conviction. However, primarily because the 'confusing' factual-sufficiency standard may have skewed a rigorous application of the Jackson v. Virginia standard by the court of appeals, we believe that it is appropriate to dispose of this case by sending it back to the court of appeals to reconsider
Brooks v. State Page 2 the sufficiency of the evidence to support appellant's conviction under a proper application of the Jackson v. Virginia standard.
Brooks, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240, at *58.
Standard of Review for Sufficiency
In reviewing the sufficiency of the evidence to support a conviction, we view all
of the evidence in the light most favorable to the prosecution in order to determine
whether 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, 2789, 61
L. Ed. 2d 560 (1979); Brooks, 323 S.W.3d at 899. We consider all of the evidence admitted
at trial, even improperly admitted evidence, when performing this sufficiency review.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury’s
determinations of the witnesses’s credibility and the weight to be given their testimony
because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899.
The Facts
The evidence showed that two police officers went into a bar to investigate a
report that someone matching Brooks’s description was there with a gun. The officers
asked Brooks to step outside, but Brooks ran from the officers. He was seen throwing
two baggies toward a pool table just before he was tased by one of the officers. One
baggie was located under the pool table. A second baggie was found in the ball return
of the pool table. The first baggie contained a small amount of marijuana (about 3
grams). The other baggie contained two other baggies—one held 4.72 grams of crack
cocaine and the other held six ecstasy tablets that weighed 1.29 grams. Brooks also had
Brooks v. State Page 3 a cell phone and, according to one of the officers, “a couple of dollars.” Brooks testified
at trial that he had "like $30 or $40" on him. At that time, Brooks did not appear to be
under the influence of narcotics, and he was not in possession of any drug
paraphernalia that could have been used for smoking crack cocaine. No gun was
located. The police gave Brooks’s cell phone and money to an acquaintance of Brooks
before they took him to jail.
An experienced Waco Police Department drug-enforcement investigator
(Thompson) testified that the bag containing the 4.72 grams of crack cocaine contained
“two larger size rocks and then maybe a smaller one” and a useable amount of
“crumbs.” He testified that each of the two large rocks weighed at least two grams and
the other one weighed “a gram and a half or something like that.” Thompson testified
that “he would say” that 4.72 grams was a “dealer amount,” which could have been cut
up into 23 or 24 rocks using a thumbnail or sharp object. He testified that 4.72 grams of
crack cocaine is worth about $470.
Thompson stated that a “typical quantity” that a dealer would have would be
more than two rocks and that he “would think” that someone with more than a gram
would be a dealer. Thompson testified that it is not “typical” for drug users to be in
possession of a large amount of drugs. He rarely had encountered many people that
are users that have more than one or two small rocks in their possession because they
generally use it as soon as they get it. Thompson also testified that typically, most crack
cocaine users would have some type of paraphernalia in their possession with which to
Brooks v. State Page 4 smoke the crack cocaine. He further stated that typically dealers do not carry
paraphernalia because they do not generally use their product.
Thompson described other factors which could indicate that a person is a dealer:
(1) possession of five, ten, or twenty dollar bills; (2) names in the person's cell phone; (3)
possession of some document identifying who owes what; (4) possession of a weapon;
or (5) others observed the person trying to sell drugs. Because the money and the cell
phone were not retained by the arresting officers, and therefore could not be searched
or introduced as evidence, none of these types of evidence were introduced in Brooks’s
case. Thompson also acknowledged that a person could possess 4.72 grams of crack
cocaine for friends or for personal use over the course of several days.
Brooks testified that he possessed only the baggie containing the marijuana, and
denied possessing the baggies containing the crack cocaine and the ecstasy pills.
However, he admitted that the baggie containing the crack cocaine and ecstasy was
packaged the same as the baggie containing the marijuana. Brooks admitted that he has
two prior convictions for possession of cocaine and another prior conviction for
possession with intent to deliver cocaine. As to these prior convictions, no limiting
instruction was requested at the time the evidence was admitted, however, the jury was
instructed in the charge that it could have considered these extraneous offenses “in
determining the intent, motive, opportunity, preparation, plan, knowledge, identity, or
absence of mistake or accident by the Defendant, if any, in connection with the offenses,
if any, alleged against him in the indictment in this case, and for no other purpose.”
Brooks v. State Page 5 Possession with Intent to Deliver
A person commits the offense of possession with intent to deliver a controlled
substance if he knowingly or intentionally possessed a quantity of the controlled
substance with the intent to deliver it. See TEX. HEALTH & SAFETY CODE ANN. §
481.112(a) (Vernon Supp. 2009); Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—
Houston [1st Dist.] 2004, no pet.). “In a possession with intent to deliver case, the State
must prove that the defendant: (1) exercised care, custody, control, or management over
the controlled substance; (2) intended to deliver the controlled substance to another;
and (3) knew that the substance in his possession was a controlled substance.” Nhem,
129 S.W.3d at 699. 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. Moreno, 195 S.W.3d at 325;
Ingram v. State, 124 S.W.3d 672, 675-76 (Tex. App.—Eastland 2003, no pet.). “Inferences
can be made from the conduct of the defendant as well as the amount of the controlled
substance possessed and the manner in which it was possessed.” Ingram, 124 S.W.3d at
675-76. Other circumstantial factors which may establish intent include: “(1) the nature
of the location at which 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;
Erskine v. State, 191 S.W.3d 374, 380 (Tex. App.—Waco 2006, no pet.). The logical force
Brooks v. State Page 6 the factors have in proving the elements of the offense is more important than the
number of factors present. Moreno, 195 S.W.3d at 326. Further, intent is a question of
fact that is determined by the trier of fact. Ingram, 124 S.W.3d at 676.
The State argues that the following evidence constitutes evidence of intent to
deliver: (1) both the bag of marijuana and the bag of cocaine were packaged in the same
manner; (2) Brooks was not in possession of any drug paraphernalia for either use or
sale; (3) Thompson testified that users typically carry some type of heating element,
such as a crack pipe, but dealers do not; (4) at the time of his arrest, Brooks was not
under the influence of a narcotic; (5) Brooks has a previous conviction for possession
with intent to deliver; (6) Brooks attempted to evade capture and discarded contraband
in the process; and (7) Brooks was found in possession of three different types of drugs.
Analysis
There were more drugs found than a user would normally take at one time
(more than 20 “servings”), there were three separate types of drugs being held by
Brooks, there was evidence that Brooks was not using or did not appear to be under the
influence of any of the drugs that were found when he was arrested, there was evidence
that Brooks did not have in his possession the tools necessary to ingest the crack cocaine
himself, and an expert opined that this evidence was, in his opinion, consistent with
what a dealer would have in his possession. The logical inference to be drawn from this
set of facts is that the drugs were possessed with the requisite intent to deliver.
The jury observed the witnesses and made its credibility determinations. We are
required to give deference to the trier of fact to “fairly resolve conflicts in the testimony,
Brooks v. State Page 7 to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson v. Virginia, 443 U.S. at 319. The jury could have believed the opinion of
Thompson, an experienced law enforcement officer, that Brooks possessed the crack
cocaine with the intent to deliver it, taken with the other circumstances present, and
could have determined that Brooks was not a credible witness.
Viewing the evidence in a light most favorable to the jury’s verdict, we find that
the evidence was sufficient for the jury to have determined that Brooks possessed the
crack cocaine with the intent to deliver. We overrule issue one.
Conclusion
We find that the evidence was sufficient under the Jackson v. Virginia standard to
sustain the conviction. We affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 16, 2011 Do not publish [CRPM]
Brooks v. State Page 8