Virgil James Jordan v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2009
• Docket: 14-08-01146-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 23, 2009

Affirmed and Memorandum Opinion filed June 23, 2009. 

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-01146-CR

VIRGIL JAMES JORDAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1160667

M E M O R A N D U M  O P I N I O N

In a single  issue, appellant, Virgil James Jordan, contends the evidence is legally and factually insufficient to support his conviction for delivery of a controlled substance, namely, cocaine, weighing less than one gram.  Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

Tommy Chapman, a Houston Police Department narcotics officer, testified that, on March 27, 2008, he was working undercover by purchasing drugs in an area of Houston known for crack cocaine problems.  At approximately 5:30 p.m., a man, later identified as appellant, flagged down Officer Chapman, who was driving an unmarked car.  When Officer Chapman stopped, either he asked appellant, or appellant asked him, what he was looking for.  Officer Chapman said he was looking for Aa 40,@ which means $40 worth of cocaine in Astreet language.@  Appellant said he could get the drugs and asked Officer Chapman to drive around the block, which is a common practice.  Officer Chapman drove around the block and then returned.  Appellant handed Officer Chapman crack cocaine.  Officer Chapman handed appellant two unmarked $20 bills.  Officer Chapman drove away and radioed other undercover officers, who were conducting surveillance of this activity.  He described appellant to the other officers and reported the transaction had occurred.  A marked patrol car unit was then instructed to detain and identify appellant.

Houston Police Officer Noe Juarez testified he and another officer detained appellant within ten seconds after the report from Chapman.  Officer Juarez explained appellant was the only person in the area matching Officer Chapman=s description of the suspect.  Officer Juarez obtained appellant=s identifying information and provided it to Officer Chapman.  Officer Chapman testified that, a few hours later, he entered appellant=s information in a police department computer which returned a picture of appellant.  At that time, Officer Chapman confirmed from the picture that appellant was the man who sold him cocaine. 

In contrast, appellant testified he did not sell any drugs on March 27, 2008.  He  admitted he was stopped by Officer Juarez, but claimed he was in the area merely to deliver a dog for a friend.

Appellant was not arrested that day because the drug transaction was conducted as part of a larger, ongoing investigation, but he was arrested six days later.  The drugs purchased by Officer Chapman tested positive as crack cocaine and weighed less than one gram.  A jury found appellant guilty of delivery of a controlled substance, namely cocaine, weighing less than one gram.  The trial court assessed punishment of eleven years= confinement.  During trial, appellant moved for a directed verdict, which was denied.

II. Standard of Review

In his sole stated issue, appellant contends the trial court erred by denying his motion for directed verdict, which we treat as a challenge to the legal sufficiency of evidence to support his conviction.  Bargas v. State, 252 S.W.3d 876, 886 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)).  In the body of his argument, appellant presents legal and factual sufficiency challenges, so we will address both contentions.

In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury is the sole judge of the credibility of witnesses and is free to believe or disbelieve all or part of a witness=s testimony.  Sharp v. State, 707 S.W2d 611, 614 (Tex. Crim. App. 1986).  We ensure only that the jury reached a rational decision and do not reevaluate the weight and credibility of the evidence.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). 

In examining a factual-sufficiency challenge, we review all evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict seems clearly wrong or manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); Cain v. State, 985 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Although we may substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury=s determinations. See Marshall, 210 S.W.3d at 625.

III.  Analysis

A person commits a state-jail felony if he knowingly delivers cocaine weighing, by aggregate weight, including any adulterants or dilutants, less than one gram. See Tex. Health & Safety Code Ann. ' 481.112(a), (b) (Vernon 2003); Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon Supp. 2008).  ADeliver@ means Ato transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.@   Tex. Health & Safety Code Ann. ' 481.002(8) (Vernon 2003).

Appellant contends the evidence was insufficient to prove he delivered a controlled substance to Officer Chapman.  However, Officer Chapman testified he was Aabsolutely certain . . . [t]here is no doubt at all in my mind@ that appellant was the person who sold him cocaine in a Ahand-to-hand delivery.@  Officer Chapman explained he is trained to notice details of a suspect=s appearance; at the time of the transaction, appellant=s appearance was distinctive because he was very thin and had Amatted@ hair with a Abig clump@ hanging on one side, although he had gained weight and changed his hair style by the time of trial.  Officer Chapman also testified the area where the transaction occurred was well-lit.  Moreover, at trial, Officer Juarez positively identified appellant as the person he detained almost immediately after this transaction.  Although appellant denied selling cocaine to Officer Chapman, the jury was free to believe the officers= testimony.  See Sharp, 707 S.W.2d at 614; see also Hasley v. State, 786 S.W.2d 733, 735 (Tex. App.CBeaumont 1989, pet. ref=d) (holding officer=s in-court identification of defendant as person who sold him controlled substance was sufficient to support conviction).  

Appellant contends the officers were not credible for several reasons. Appellant emphasizes that Officer Chapman described appellant=s distinctive hairstyle yet also testified appellant wore a knit Askull cap@ at the time of the transaction.  However, when asked how far appellant=s cap extended down on his head, Officer Chapman began to explain, AI=m guessing, you know, a couple of inches above the ear where I could see the - -,@ before being asked another question.  Thus, the jury could have reasonably concluded that appellant=s cap did not preclude Officer Chapman from noticing his hair style. 

Appellant also asserts Officer Juarez testified on cross-examination he did not find  the $40 on appellant when detained and appellant testified he possessed only $11.86; thus, he could not have just sold cocaine to Officer Chapman.  However, appellant misstates Officer Juarez=s testimony;  he stated only that the police report did not reflect $40 was found on appellant.  He also clarified that Officer Chapman made the report and it was Officer Juarez=s partner who searched appellant=s pockets.  Thus, the record does not reflect whether appellant possessed $40 when detained.  Nevertheless, considering the officers= accounts of the incident, the lack of any testimony showing $40 was found on appellant does not render the evidence insufficient to support his  conviction.  

Further, appellant argues Officer Juarez=s testimony was internally inconsistent because he first stated he checked appellant for money but then changed his testimony when questioned about the amount of any money found.  However, considering the first part of this testimony in context, the jury could have concluded that Officer Juarez meant the officers collectively searched appellant.  We find no reason to intrude on the jury=s role to reconcile any conflicts in the witnesses= testimony and evaluate their credibility.

Finally, appellant suggests he would not have sold drugs to Officer Chapman, citing his own testimony that, on the date at issue, he knew Chapman was a police officer based on previous encounters.  Officer Chapman agreed it was Apossible@ he had prior contact with appellant.  However, he explained it is not uncommon for the same person to sell him drugs more than once because the person does not remember Chapman as an officer.  The jury was free to disbelieve appellant=s claim that he knew Chapman was an officer.

In sum, after reviewing all the evidence in the light most favorable to the finding, we conclude a rational jury could have found beyond a reasonable doubt that appellant knowingly delivered cocaine weighing less than one gram.  Moreover, after reviewing all evidence in a neutral light, it is not so weak that the finding seems clearly wrong or manifestly unjust, and the finding is not against the great weight and preponderance of the evidence. 

Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Justice Seymore, Brown, and Sullivan.

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