Shelton, DeWayne v. State

• Court: Court of Appeals of Texas
• Decided: March 28, 2006
• Docket: 14-04-00777-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 28, 2006

Affirmed and Memorandum Opinion filed March 28, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00777-CR

DEWAYNE SHELTON, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 967,797

M E M O R A N D U M   O P I N I O N

Following a bench trial, appellant, Dewayne Shelton, was convicted for the felony offense of possession with intent to deliver a controlled substance.  Appellant entered a plea of true to two enhancement paragraphs for prior felony convictions, and the trial court assessed punishment at forty years= imprisonment.  In one issue, appellant contends that the evidence is factually insufficient to support his conviction.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).

At trial, an undercover Houston police officer testified that on July 21, 2003, he attempted to purchase cocaine from an unknown homeless man.  The officer testified that the man got in the officer=s car, directed him to a hotel, and instructed him to stop outside room number twenty-four.  When the officer arrived at the specified room number, he honked his horn.  Appellant came out of the room and approached the officer=s car. The officer told appellant that he wanted to buy fifty dollars of crack cocaine.  According to the officer, appellant replied that he could get the cocaine if the officer would drive him to his source.  The officer drove both appellant and the unknown man to a nearby house.  Appellant accepted fifty dollars from the officer and went inside the house.  A short while later, appellant got back in the officer=s car with a plastic bag containing what appeared to be crack cocaine.  After the officer left the house, he gave the Abust@ signal and another officer stopped the car for a traffic violation. Appellant stuffed the bag into a pocket in the passenger seat of the car where it was later retrieved by the undercover officer.  Appellant was arrested at the scene.  A criminalist with the Houston Police Department Crime Laboratory testified that the bag contained 7.4 grams of a substance that tested positive for cocaine.

Appellant testified at trial.  He denied possessing the cocaine, but admitted to accepting a ride from the undercover officer to a house where his uncle was staying.  Appellant testified that the purpose of the trip was to pick up his AA.C. technician card@ from his uncle, but that his uncle was not there.  Appellant=s girlfriend testified that she was in the hotel room with appellant on the day of the offense when she received a call from a man who identified himself as ABobby.@^[1]  The man asked to speak with appellant.  After a brief  phone conversation, appellant told her that he was going to his uncle=s house to get Asome kind of card.@  Appellant=s girlfriend said that appellant got in a car with two men and left, and that she had not seen appellant again until the day of trial.

Appellant argues that the evidence is insufficient to support the verdict because there were no witnesses to corroborate the undercover officer=s testimony, and the fifty dollars used to purchase the crack cocaine was never recovered.  However, the testimony of a witness  to a crime is direct evidence that is factually sufficient to support a conviction if the fact-finder reasonably believes the witness.  Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001).  Moreover, we must defer to the trial court=s determinations involving witness credibility and demeanor.  Zuniga, 144 S.W.3d at 481.  Here, the trial court could have reasonably believed the officer=s testimony and disbelieved appellant=s explanation as to the AA.C. technician card.@  Accordingly, we find the evidence factually sufficient to support the conviction.

Appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed March 28, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The undercover officer and appellant both testified that the other man in the car had a first name of ARobert@ or ABobby.@  However, neither knew the man=s last name.  The undercover officer testified that the man was not an informant and was arrested with appellant and placed in a separate patrol car.  The man did not testify, and the State and the undercover officer described the man as Aunknown.@