Affirmed and Memorandum Opinion filed March 2, 2004.
In The
Fourteenth Court of Appeals
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NOS. 14-03-00419-CR &
14-03-00420-CR
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LEROY EUGENE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 918,836 and 918,837
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M E M O R A N D U M O P I N I O N
Appellant, Leroy Eugene Johnson, appeals his convictions for possession with intent to deliver cocaine, and delivery of cocaine. He contends the evidence is insufficient to support his convictions, and the trial court erred in denying his request for a mistrial in response to the State’s improper jury argument. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
Background
Houston Police Officers Sinai and Hicks were conducting an undercover investigation of drug trafficking. Around dusk, they approached Michael Newton, who was walking down a residential street, and asked him if he knew where they could buy cocaine. Newton directed the officers to park in front of a nearby residence where two or three men, including appellant, were standing in the driveway. Newton spoke to appellant who then appeared to go inside the house.[1] After a few minutes, appellant returned to the driveway and handed something to Newton. Newton then walked back to the officers with the object in his hand and handed two rocks of crack cocaine to Officer Sinai.
Officer Hicks used his radio to instruct additional officers to arrest appellant and Newton. An officer arrested appellant and advised him of his Miranda rights. In response to the officer’s questions, appellant said he lived in the residence which had been used for part of the drug transaction. He described where his bedroom was located in the house and signed a search consent form. Appellant produced a key to the front door. Once inside, appellant again specified the location of his bedroom. A narcotics detection dog alerted the officers to a jacket and a shoe box in appellant’s closet. The officers found 10.6 grams of cocaine in the jacket and a small amount of marijuana in the shoe box. In the bedroom, the officers also found a birth certificate, a GED certificate, and a statement of earnings, all containing appellant’s name. A jury convicted appellant of delivery of cocaine and possession with intent to deliver cocaine.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence supporting his convictions. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In evaluating the factual sufficiency of the evidence, we may not intrude on the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we may disagree with the verdict, our review must be appropriately deferential to avoid our substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).
Delivery of a Controlled Substance
In his first issue, appellant contends the evidence is legally and factually insufficient to support his conviction for delivery of a controlled substance. In the indictment, the State alleged appellant delivered cocaine by (1) actual transfer; (2) constructive transfer; and (3) offering to sell. See Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2004). On appeal, the State argues the evidence supports a conviction for delivery by constructive transfer. Accordingly, we will review the sufficiency of the evidence based on this manner of delivery.
A constructive delivery is the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the defendant’s instance or direction. Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App. 1988). Prior to a constructive delivery, the defendant must have either direct or indirect control of the transferred substance. Id. at 221–22. Appellant claims the evidence is legally and factually insufficient to prove he had control of the cocaine that Newton gave to Officer Sinai.
First, appellant claims the evidence is legally insufficient because the officers did not actually observe cocaine in his hand. However, the officers testified that after they asked Newton if he knew where they could buy cocaine, he instructed them to park near the driveway where appellant was standing; Newton spoke to appellant; appellant appeared to go inside the house; appellant returned to the driveway and made a hand-to-hand exchange with Newton which the officers recognized as a transaction common among drug dealers; Newton did not put his hands in his pockets after the hand-to-hand exchange; and Newton then handed the cocaine to Officer Sinai. We find this evidence is legally sufficient for a rational jury to have found that appellant had direct control of the cocaine, and overrule appellant’s first issue.
In his second issue, appellant claims the evidence is factually insufficient to support his conviction because the finding that he had control of the cocaine is greatly outweighed by the following evidence. One of the officers testified that it was possible Newton could have had the cocaine in his hand before he approached the house. The transaction also took place at dusk. Additionally, one of the other men in the driveway testified that Newton did not talk to appellant, but to another man in the driveway, and that appellant did not go inside the house that night. However, deferring to the jury’s determination of credibility of witness testimony, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant’s second issue.
Possession of a Controlled Substance
In his third issue, appellant claims the evidence is factually insufficient to support his conviction for possession of a controlled substance. To sustain a conviction for possession of a controlled substance, the State must prove the defendant exercised actual care, custody, or control of the substance and must have been conscious of his connection with the substance and known what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence that affirmatively links a defendant to the substance may be direct or circumstantial. Id. The officer who arrested appellant testified that appellant admitted that he lived at the house where the drug transaction had occurred. He also testified that appellant produced keys to the house, acknowledged the location of his bedroom, and gave consent to search. Additionally, the officer saw appellant’s name on personal documents located in the bedroom and found cocaine in the bedroom closet. The State’s evidence also showed that appellant went in the house after talking to Newton, and came back outside with cocaine. In contrast, the owner of the house and his wife testified that appellant had never lived or stayed at their home. They claimed that their grandson stayed in the bedroom where the drugs were found, and the clothes in the closet belonged to him.
Appellant concedes the State’s evidence is legally sufficient, but he contends the State’s proof linking him to the cocaine was greatly outweighed by the evidence that he had never stayed at the house. However, as previously noted, the jury is the sole judge of the weight and credibility to be given witness testimony, and our factual sufficiency review may not intrude on this role. Santellan, 939 S.W.2d at 164. Considering all the evidence, the proof linking appellant to the cocaine was not greatly outweighed by the testimony that he did not live in the house. We overrule appellant’s third issue.
Jury Argument
In appellant’s final issue, he contends the trial court erred in denying his motion for mistrial during the State’s closing argument. Appellant’s counsel stated during his closing argument, “When [appellant] was arrested no drugs, no paraphernalia, no money. Big time drug dealer. No money. They searched the house. No money. Where is Michael Newton? Ask the State that question.” Subsequently, the following exchange occurred:
State: Let’s talk about witnesses. You had witnesses who work for the Houston Police Department. . . . And you heard no reason for them to lie. They have jobs that depend on them doing their job and coming to testify. And if they lied, what do you think would happen? They would be fired. You didn’t hear that they have any kind of bias against this person. Never seen him before. Never dealt with him before. Just happened to be one of the people that got involved while they were going around looking for street level narcotics transactions.
The defense has said where is Michael Newton. Well, first of all, if Michael Newton were here you know what he would say? He would go along with the other people that lied for the defendant.
Defense: Your Honor, I’m going to object. That’s arguing outside the record. Court: Sustained. Stay in the record.
Defense: Ask to have an instruction that the jury disregard.
Court: The Jury will disregard the last remarks.
Defense: Move for mistrial.
Court: Overruled
State: [Appellant’s counsel] said why didn’t the State bring you Michael Newton. [Appellant’s counsel] subpoenaed Michael Newton. He could have brought him just as–
Defense: That’s arguing outside the record.
Court: Sustained.
State: I ask the court to take judicial notice that the defense has subpoenaed Michael Newton.
Court: Stay within the record.
State: Even if he came here and took the stand, you know he would take the Fifth because–
Defense: Again, objection. He’s arguing outside the record.
Court: Sustained.
Defense: Ask for an instruction.
Court: Stay within the record. The jury will disregard.
Defense: Move for mistrial.
Court: Overruled.
(emphasis added).
Appellant claims the State’s comments that Newton would have lied like the other defense witnesses, and that he would have taken the Fifth constituted unsworn testimony, outside the record. The permissible areas of jury argument are (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to the argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). The State contends the comments were not improper because they were in response to defense counsel’s comment to “ask the State” where Michael Newton was. However, under the invited argument rule, prosecutorial argument outside the record is permissible only in response to defense argument which goes outside the record. Tucker v. State, 15 S.W.3d 229, 237 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996)). Here, defense counsel’s statements were not outside the record, so the State’s response was improper. See id.
We will reverse if, after reviewing the record as a whole, we conclude that the argument was extreme and manifestly improper, violated a mandatory statute, or injected new facts, harmful to the accused. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). However, an instruction to disregard will generally cure any jury argument error. Id. An instruction is insufficient to cure the harm only if the argument is offensive or flagrant. Id. at 116. After reviewing the record as a whole, we do not find that the State’s comments were so flagrant that the instruction to disregard was ineffective. See id.
Appellant also claims the State’s comments that the Houston Police Department employees would be fired if they lied injected unsworn testimony that was outside the record into the case. However, we find that appellant has waived this complaint for failing to timely object to the comments. A timely objection is required to preserve error for appellate review. Tex. R. App. P. 33.1(a)(1). A defendant must object to improper jury argument at the earliest possible moment. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see Curtis v. State, 640 S.W.2d 615, 618 (Tex. Crim. App. 1982) (holding a defendant should object to improper jury argument at the time the argument is made through a contemporaneous objection). In this case, appellant raised an objection after the State had concluded talking about its witnesses and had moved on to discussing Michael Newton. Although this appears to be an objection to the State’s comments about Michael Newton, assuming it was an objection to the State’s comments on its own witnesses, we find appellant waived this issue for failing to object to the statement when it was made. See Parks v. State, 858 S.W.2d 623, 631 (Tex. App.—Fort Worth 1993, pet. ref’d). However, even if appellant’s objection was sufficient to preserve error, as appellant contends, the instruction to the jury to disregard was effective to cure any harm. See Wesbrook, 29 S.W.3d at 116. We overrule appellant’s final issue.
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed March 2, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Officers could not see the front door to determine if appellant actually went inside, but he walked to the patio area in front of the door and “disappeared.”