Lafonda Gray v. State

Court of Appeals of Texas

Lafonda Gray v. State

Court of Appeals of Texas·Decided July 25, 2012·No. 08-11-00003-CR·Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

' LAFONDA GRAY, No. 08-11-00003-CR ' Appellant, Appeal from ' v. 120th District Court ' THE STATE OF TEXAS, of EL Paso County, Texas ' Appellee. ' (TC # 20100D01838)

OPINION

Lafonda Gray appeals his conviction of possession of less than one gram of cocaine. A

jury found Appellant guilty and the trial court assessed his punishment at confinement in the

state jail for twenty-four months. We affirm.

FACTUAL SUMMARY

In the early part of 2010, Detective Lynn Picard received an anonymous Crime Stoppers

tip that drugs were being sold out of 11009 Rockdale in El Paso. Picard conducted surveillance

of the residence in February and March of 2010 in an effort to verify the tip but she was

unsuccessful. Consequently, she began doing trash pick-ups at the residence in an effort to

search for drug residue or paraphernalia. On March 10, 2010, Picard and Detective Sergio Lopez

went to Appellant’s residence early in the morning prior to curb-side trash pick-up and removed

the trash bags from the bin. Picard and Lopez found mail addressed to Appellant, a couple of

sandwich baggies with cut corners, and marihuana stems. Baggies with the cut corners are used

in packaging of street level narcotics. She also found cocaine residue on one of the cut corners.

Picard picked up the trash again two weeks later and found additional baggies with cut corners, marihuana stems and seeds, and marihuana “roaches.” She tested one of the cut corners and

found cocaine residue. Picard also found FoodSaver bags which are used to package marihuana.

Approximately two weeks later, Picard picked up the trash again and found marihuana stems and

seeds, cut corners from baggies, and a Ziploc bag that tested positive for cocaine. She also found

a document bearing Appellant’s name.

Based on the information she had gathered, Picard obtained a search warrant for

Appellant’s residence. Picard and Lopez were assisted by the SWAT Team when they executed

the search warrant at 5:20 a.m. on April 16, 2010. The SWAT Team entered first and secured

Appellant, Demarko Gray, and Kenneth Berry. When Lopez saw Appellant seated outside by

the front door of the residence, Lopez asked who owned the house so he could give him the

search warrant. Appellant told Lopez that it was his house and his bedroom was in the northwest

corner of the house. In the kitchen, Picard found marihuana, a spoon with white residue on it

which tested positive for cocaine, and a large scale. She also found a small digital scale in a

drawer along with small Ziploc baggies and a bill from CitiCard addressed to Appellant. Picard

testified that the small baggies are commonly used to package drugs for sale. In another drawer,

the officers found a gun. Picard explained that the larger scales are typically used when

packaging larger quantities of drugs like marihuana because they are measured in pounds. The

smaller digital scales are used in the packaging of smaller quantities of drugs. In the living

room, the officers found marihuana roaches and stems, and a Taser. In the dining room, one of

the officers found a water bill for the residence in Appellant’s name as well as a Bank of

America statement. The officers also searched the bedrooms. In the northwest bedroom, the

officers found an expired driver’s license and another document bearing Appellant’s name. They

searched the dresser in that bedroom and found a large sum of cash. They also found a lockbox

-2- which contained more cash and a Texas identification card belonging to Appellant. The officers

found $5,255 in Appellant’s bedroom. The police found an additional $2,475 hidden inside of a

shoe in the bedroom used by Demarko. Demarko denied ownership of the money but Appellant

claimed that it was his money. When asked whether he was employed, Appellant told the

officers that he worked for Triple A Construction and for a mechanic’s shop, but he could not

provide the officers with any information or telephone numbers to verify his employment. Sgt.

Barry Alvarez asked Appellant why he had so many $100 bills in the lockbox and he said it was

because he knew the police would be looking for $20 bills and would be less likely to seize the

money as the proceeds of drug trafficking so he exchanged the $20 bills for $100 bills. Sgt.

Alvarez testified that cocaine is sold to street level users in $20 bindles. The white powdery

substance found on the spoon was submitted to the El Paso Police Department Crime Lab for

testing. The first analyst determined that the substance was cocaine and it weighed .04 grams.

The second analyst likewise determined that it was cocaine but it weighed .03 grams because a

portion of the substance had been used in the prior testing.

Appellant’s older brother, Demarko Gray, testified for the defense. He lives with his

grandmother but he has some clothes and other items at Appellant’s house. Demarko admitted

that the gun found in the kitchen was his. He put it in the kitchen drawer when he heard the

police announce that they were entering the house. Appellant keeps Demarko’s pit bulls at the

house because their grandmother did not want the dogs in her yard because she has a garden.

Demarko sells the pit bull puppies for $500 to $600 each and he shares part of the money with

Appellant. On cross-examination, Demarko admitted that he had only sold one litter of puppies

and he had not sold any from the second litter because they were only five weeks old. Demarko

explained that he used the large scale to weigh the puppies. Demarko and Appellant also have a

-3- pressure washing business and they make $400 to $500 per week. On cross-examination,

Demarko testified that they charge $10 per car and usually wash ten to twenty cars at the flea

market on Fridays and Saturdays. They have a keyboard and recording equipment and

sometimes charge other people to use the equipment. He estimated they made approximately

$1,000 per month with this business. Demarko and Appellant also purchase clothes wholesale

from China and sell them out of the house. Demarko admitted that he and Kenneth Berry had

smoked marihuana the night before the police entered the house, but he denied using cocaine.

Demarko was charged with possession of marihuana and cocaine. The cocaine charge was

dismissed and he entered a plea of guilty to possession of marihuana.

Kenneth Berry testified that he and Ronald Turner went to visit Demarko at Appellant’s

house. He took some “chronic” or high-grade marihuana to the house and he smoked it with

Ronald and Demarko. They played games on the Xbox for a while and Ronald left. Berry also

took seven grams of cocaine he had purchased earlier that day for $200, a spoon, and a small

scale to the house. After Demarko fell asleep, Berry started using the cocaine by placing it in the

spoon and snorting it. He used all of the cocaine by himself.

Detective Lopez testified on rebuttal that a street level user typically buys a “20” or .3 to

.5 grams of cocaine for $20. For $200, a person can purchase what is referred to as “a seven” or

about seven grams of cocaine. That large an amount is usually purchased by a dealer, not a street

level user. He had never known anyone to use seven grams of cocaine in a twelve hour period

by himself. Further, people typically snorted cocaine from little vials or the corners of baggies

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