COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-172-CR
STEVE R. KING APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Steve R. King appeals from his conviction for delivery of a
controlled substance. We affirm.
Background
Fort Worth Police Officer Tracy Crowe testified that on July 19, 2005,
she was working undercover with Detective Roy Hudson in an area of town
notorious for drug activity. She said that after unsuccessfully attempting to
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… See T EX. R. A PP. P. 47.4.
buy drugs at a suspected crack house, she and Detective Hudson, with
Detective Hudson at the wheel, were driving to another location when
Appellant yelled and waived to them.
Detective Hudson made a u-turn and drove toward Appellant, who was
walking away from a man sitting on a chair next to a Dumpster. Appellant ran
up to the vehicle and spoke to Detective Hudson. Officer Crowe testified that
Appellant asked, “[W]hat are you looking for?” and that Detective Hudson said
they were looking for “twenty hard,” which is street slang for $20 worth of
crack cocaine. Officer Crowe said that Appellant said “okay” and stuck his
hand out and that Detective Hudson gave him a $20 bill.
Officer Crowe testified that Appellant ran back to the man sitting by the
Dumpster—later identified as Kenneth Wilson—and handed him the $20 bill and
that Wilson handed something to Appellant. Appellant ran back to the car and
dropped a rock of crack cocaine into Detective Hudson’s hand. Officers
Hudson and Crowe then drove away and radioed an arrest team waiting nearby
to move in. Officer Crowe said that the arrest team arrested Appellant and
Wilson, found on Wilson the $20 that Detective Hudson had given Appellant,
and found more crack cocaine hidden on the Dumpster during a search incident
to the arrests.
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Detective Hudson also testified. His testimony was essentially the same
as Officer Crowe’s.
Officer Jeff Lucio testified that he was on the arrest team on the day in
question. He said that when the arrest team received the “bust” signal from
Officer Crowe, he and the other members of the arrest team immediately
moved in and arrested the only two people in the area, Appellant and Wilson.
In a search incident to the arrests, the arrest team found on Wilson the $20 bill
Detective Hudson had given to Appellant, which had been photocopied earlier
in the day to aid in later identification. Officer Lucio explained that drug dealers
often conceal their stash of drugs somewhere other than on their persons in the
hope that police will not discover the stash if they arrest the dealer, so his team
always searches the immediate area when making a drug bust. A search of the
area immediately around Wilson found a baggie containing a substance later
identified as 1.19 grams of crack cocaine concealed on the Dumpster in one of
the sleeves used by the lift arms of a garbage truck to lift and empty the
Dumpster. The baggie containing the 1.19 grams of cocaine was admitted as
State’s exhibit 2 over Appellant’s objections, and its admission forms the basis
of his second point on appeal.
Dr. Yin Zhang, a forensic scientist with the Fort Worth crime lab, testified
that the substance Appellant delivered to Detective Hudson was .20 grams of
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crack cocaine and that the substance found on the Dumpster was 1.19 grams
of crack cocaine.
The defense called Kenneth Wilson. W ilson testified that two police
officers driving a Bronco approached him and other people standing on the
street and asked if they had “20 for hard.” Wilson said that the female officer
was driving the vehicle and the male officer was riding in the passenger seat,
contrary to Officer Crowe’s and Detective Hudson’s testimony. Wilson testified
that Appellant spoke to the officers and then walked over to where Wilson was
seated next to the Dumpster. Wilson stated that all of the drugs hidden on the
Dumpster were his. According to Wilson, Appellant handed him a $20 bill,
retrieved something from the Dumpster, and gave it to the officers. Wilson said
that he did not give drugs to Appellant and that he did not know if the
substance Appellant gave to the officers was really drugs. On cross-
examination, Wilson said that Appellant did not need his permission to access
the stash in the Dumpster. He also said that Appellant was working for him
that day.
The jury convicted Appellant of delivery of a controlled substance of less
than one gram. Punishment was tried to the bench. The State offered
evidence of two prior felony convictions. Appellant also testified. He said that
he was working for himself, not Wilson, on the day in question, and he
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admitted that he gave the officers drugs for money and that he was a drug
dealer. The trial court assessed punishment at twenty years’ confinement.
Factual Sufficiency
In his first point, Appellant challenges the factual sufficiency of the
evidence to support his conviction. When reviewing the factual sufficiency of
the evidence to support a conviction, we view all the evidence in a neutral light,
favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.
App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
We then ask whether the evidence supporting the conviction, although legally
sufficient, is nevertheless so weak that the fact-finder’s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the fact-finder’s
determination is manifestly unjust. W atson, 204 S.W.3d at 414–15, 417;
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under
the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
A person commits the offense of delivery of a controlled substance if the
person knowingly delivers a controlled substance. T EX. H EALTH & S AFETY C ODE
A NN. § 481.112(a) (Vernon 2003).
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Appellant argues that the conflict between the testimony of Officer
Crowe and Detective Hudson on the one hand and Kenneth Wilson on the other
renders the evidence factually insufficient, apparently because Wilson’s
testimony suggests that whatever Appellant gave to the officers was not
cocaine. Wilson testified that his stash of drugs was in the Dumpster, that
Appellant did not need his permission to access the stash, that Appellant
retrieved something from the Dumpster and gave it to the officers, and that
Wilson did not know if the substance Appellant gave to the officers was really
drugs. Officer Crowe and Detective Hudson testified that Appellant delivered
to them a substance that appeared to be crack cocaine, and Dr. Zhang testified
that the substance was .20 grams of crack cocaine. To the extent that there
is a conflict in the testimony as to whether the substance was cocaine, this
conflict was a question for the jury to resolve. See Watson, 204 S.W.3d at
417. The jury resolved it against Appellant. We cannot say that the evidence
supporting the verdict was so weak that the jury’s determination was clearly
wrong and manifestly unjust or that conflicting evidence so greatly outweighs
the evidence supporting the conviction that the jury’s determination was
manifestly unjust; thus, the evidence is factually sufficient to support the jury’s
guilty verdict. See id. at 414–15, 417. We overrule Appellant’s first point.
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Admission of Drugs Found on Dumpster
In his second point, Appellant argues that the trial court erred by
admitting into evidence State’s exhibit 2—the drug stash police found hidden
on the Dumpster—over his relevancy and rule 403 objections. See T EX. R. E VID.
403. The State replies that Appellant’s objections were untimely because he
did not object to earlier testimony about the stash’s discovery.
A party must object to evidence as soon as the basis for the objection
becomes apparent. T EX. R. E VID. 103(a)(1); Lagrone v. State, 942 S.W.2d 602,
618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997). When a party
objects to the admission of physical drug evidence after a police officer has
already testified about finding the drugs without objection, nothing is presented
for review. Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980)
(“[A]ppellant argues error was committed by the introduction of LSD tablets and
marihuana discovered in connection with his oral confession. Assuming there
was some objection to this evidence when offered, there was no objection to
officer Frazier’s testimony about finding the narcotics. An objection must be
urged at the earliest opportunity. Nothing is presented for review.” (Citations
omitted)).
Before the State offered its exhibit 2, Officers Crowe and Lucio both
testified without objection that police found a stash of crack cocaine when they
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searched the Dumpster. Because Appellant failed to urge his objection at the
earliest opportunity, i.e., when the officers testified about finding the drugs, he
waived his subsequent objection to the admission of the drugs themselves, and
nothing is presented for our review. See id. We overrule Appellant’s second
point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 26, 2008
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