NO. 12-10-00131-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL DONAZE GARRETT, § APPEAL FROM THE 145TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Michael Donaze Garrett appeals his conviction for delivery of a controlled substance in an
amount of less than one gram, with the punishment range enhanced by two prior convictions, for
which he was sentenced to imprisonment for fifteen years and fined $5,000. In five issues,
Appellant argues that the evidence is legally and factually insufficient to support his conviction and
that the trial court erred in excluding evidence from the jury, denying two requests for mistrial, and
denying a requested jury instruction. We affirm.
BACKGROUND
Richard Conner worked as a confidential informant for the City of Nacogdoches Police
Department. Before seeking work with the police department as a confidential informant, Conner
had spent some time cultivating a friendship with Appellant because Conner believed Appellant
sold drugs.
On March 26, 2009, Conner, supervised by officers from the Nacogdoches Police
Department, attempted to purchase crack cocaine from Appellant. Conner was equipped with a
button camera and an audio recording device when he made contact with Appellant. He eventually
approached a vehicle occupied by Appellant and an unknown individual, and purchased crack
cocaine. Conner claimed that he purchased the crack cocaine from Appellant. However, the video
from the button camera did not show the transaction, and the officers supervising Conner were
unable to see the transaction.
On April 16, 2009, Conner, again supervised by the police, attempted once more to purchase
crack cocaine from Appellant. This purchase occurred in a home. As with the previous purchase,
Conner wore a button camera and an audio wire. Conner gave Appellant money in exchange for
crack cocaine. A Nacogdoches police officer saw Appellant exit the house with Conner.
Additionally, the video from the button camera showed Appellant, but the actual transaction was
not clearly visible on the video.
After both purchases, the Nacogdoches police officers conducted a field test on the
substance obtained by Conner, and both times, the substance was determined to be crack cocaine.
The suspected crack cocaine was analyzed by an expert at the Texas Department of Public Safety
crime lab in Tyler, who verified that it was crack cocaine.
Based on the two purchases of crack cocaine by Conner, Appellant was charged with two
counts of delivery of a controlled substance in an amount of less than one gram. Appellant pleaded
“not guilty,” and the case proceeded to trial. The jury found Appellant “not guilty” of Count One
(the March 26th transaction), but “guilty” of Count Two (the April 16th transaction). During the
punishment phase of the trial, the State presented evidence that Appellant had previously been
convicted of two felony drug offenses. After deliberating, the jury assessed a sentence of
imprisonment for fifteen years and a fine of $5,000. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his second and third issues, Appellant argues that the evidence is legally and factually
insufficient to support the trial court‟s judgment. Specifically, Appellant contends that the evidence
is legally and factually insufficient to prove that he delivered crack cocaine and insufficient to
corroborate Conner‟s testimony.
Standard of Review
We initially note that the court of criminal appeals recently held that there is “no meaningful
distinction between the Jackson v. Virginia1 legal sufficiency standard and the Clewis factual
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Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).
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sufficiency standard and overruled Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)
and its progeny. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality
opinion). The court held that “the Jackson v. Virginia [legal sufficiency] standard is the only
standard that a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” See id. Accordingly, we will not consider independently Appellant‟s argument that the
evidence is factually insufficient to support the verdict.
When reviewing the sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 315-16, 99 S.
Ct. at 2786-87; Brooks v. State, 323 S.W.3d at 899. Under this standard, a reviewing court does not
sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating
the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899; Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers to the fact finder‟s
resolution of conflicting evidence unless that resolution is not rational in light of the burden of
proof. Brooks, 323 S.W.3d at 899–900. The duty of a reviewing court is to ensure that the
evidence presented actually supports a conclusion that the defendant committed the crime. See
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the
State‟s theories of liability, and adequately describes the particular offense for which the defendant
is tried.” Id. In the case at hand, to support Appellant‟s conviction for delivery of a controlled
substance, the State must prove that Appellant knowingly delivered cocaine. TEX. HEALTH &
SAFETY CODE ANN. § 481.112(a), (b) (Vernon 2010). “Deliver” means transfer, actually or
constructively, to another. Id. § 481.002(8) (Vernon 2010).
Texas Code of Criminal Procedure, article 38.141 requires a conviction for delivery of a
controlled substance on the testimony of a confidential informant to be “corroborated by other
evidence tending to connect the defendant with the offense committed.” TEX. CODE CRIM. PROC.
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ANN. art. 38.141(a) (Vernon 2005). “Corroboration is not sufficient … if the corroboration only
shows the commission of the offense.” Id. art. 38.141(b). The corroboration requirement for
confidential informants is analyzed in the same way as is the corroboration requirement for
accomplice testimony. Torres v. State, 137 S.W.3d 191, 196 (Tex. App.–Houston [1st Dist.] 2004,
no pet.). To determine whether the confidential informant testimony is corroborated, we must
eliminate all confidential informant testimony and determine whether the inculpatory facts and
circumstances in evidence tend to connect the appellant to the offense. Id. (citing McDuff v. State,
939 S.W.2d 607, 612 (Tex. Crim. App. 1997)). The remaining evidence need not directly link the
suspect to the crime, nor must it alone establish his guilt beyond a reasonable doubt; but rather, the
nonconfidential informant evidence merely must tend to connect the suspect to the offense.
McDuff, 939 S.W.2d at 613.
Analysis
Here, Conner was unequivocal in his testimony that Appellant delivered crack cocaine to
him on April 16, 2009. Conner called Appellant and then went to a convenience store to purchase
the crack cocaine. When Conner arrived and saw that Appellant was not there, he called Appellant,
and Appellant told Conner to meet him at his girlfriend‟s house. Conner eventually found
Appellant‟s girlfriend‟s house and made contact with Appellant. Appellant greeted Conner at the
door and, in exchange for one hundred dollars, gave Conner crack cocaine that Appellant retrieved
from a pill bottle. Conner then exited the house with Appellant.
In addition to Conner‟s testimony, the jury watched and heard video and audio recordings of
the transaction. The jury heard from two police officers who testified that they searched Conner
and his vehicle prior to the transaction. The police officers met with Conner shortly after the
transaction and took the suspected cocaine from him. The video and audio recordings showed
Conner entering his vehicle before the transaction and ended with the police officers taking the
suspected cocaine from him after the transaction. The evidence showed that Conner made one other
stop and that he talked to someone on the telephone at that time. The jury then saw Conner drive
around a neighborhood, where he eventually stopped at a house and was greeted by Appellant.
Daniel Johnson, a Nacogdoches city police officer, testified that he observed the transaction and
recognized Appellant. When asked specifically who Conner transacted with on April 16, Johnson
testified that it was Appellant. The substance purchased by Conner was field tested and determined
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to be crack cocaine, and subsequently tested in a lab and verified to be crack cocaine. The cocaine
weighed less than a gram.
Appellant‟s mother and current girlfriend testified. They stated that Appellant did not have
a girlfriend in the neighborhood where Conner purchased the crack cocaine. They further testified
that Appellant was working at the time, and if he was not working, he was with one or both of them.
It is for the jury to weigh the evidence and determine the credibility of the witnesses. See,
e.g., Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). The jury saw fairly convincing
evidence that Appellant was in the neighborhood at the time of the transaction, and Conner and
Johnson identified Appellant as the person who provided Conner with the crack cocaine on April
16.
Having examined the aforementioned evidence in the light most favorable to the verdict, we
conclude that the jury could have determined beyond a reasonable doubt that Appellant committed
the offense of delivery of a controlled substance in an amount of less than one gram. Further, there
is evidence, other than Conner‟s testimony, which connects Appellant to the offense and
corroborates Conner‟s testimony. Therefore, we hold that the evidence is sufficient under the
Jackson v. Virginia standard to support the jury‟s verdict. Appellant=s second and third issues are
overruled.
EXCLUSION OF EVIDENCE
In his first issue, Appellant complains that the trial court erred by excluding evidence that
Conner was arrested shortly before his trial for impersonating a peace officer.
Standard of Review
Issues of admission or exclusion of evidence are reviewed under an abuse of discretion
standard. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). An abuse of discretion
occurs when a trial court applies an erroneous legal standard, or when no reasonable view of the
record could support the trial court‟s conclusion under the correct law and the facts viewed in the
light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim.
App. 1996).
Applicable Law
A party may not attack or support a witness‟s credibility by inquiring into specific instances
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of the conduct of a witness, other than conviction of a crime as provided in rule 609. TEX. R. EVID.
608(b) (emphasis added). Although rule 608(b) seems to prohibit all inquiries into specific
instances of conduct other than conviction of a crime, specific instances of conduct can be used to
expose bias, correct any affirmative misrepresentations made on direct examination, or demonstrate
lack of capacity. See Lagrone v. State, 942 S.W.2d 602, 612–13 (Tex. Crim. App. App. 1997)2;
Grant v. State, 247 S.W.3d 360, 367 (Tex. App.–Austin 2008, pet. ref‟d). A party may ask the
witness or establish by public record that the witness has been convicted of a crime if the crime was
a felony or involved moral turpitude and the court determines that the probative value of admitting
the evidence outweighs the prejudicial effect to a party. TEX. R. EVID. 609 (emphasis added).
Analysis
Here, Appellant argues that evidence of Conner‟s arrest for impersonating a police officer
was admissible under rule 609. We disagree. Conner was arrested shortly before Appellant‟s trial,
but nothing in the record shows that Conner had been convicted of that offense at the time of
Appellant‟s trial. Rule 609 allows a party to introduce evidence of a conviction, not an arrest.
Appellant‟s proffered evidence is inadmissible under rule 609.
Appellant also fails to show the evidence admissible pursuant to an exception to rule 608(b).
Although Appellant cited the exceptions to rule 608(b) in his brief, he does not argue that any of the
exceptions apply. See TEX. R. APP. P. 38.1(h). Appellant argued to the trial court that the
impersonating an officer arrest should be admissible because it violated one of the rules the police
department set out for confidential informants. This is not an exception to rule 608(b), and our
review of the record confirms that none of the exceptions apply. Conner‟s arrest occurred in late
April or early May of 2010, more than a year after he had made purchases from Appellant. A
pending criminal charge could, in the appropriate case, be a potential cause for bias if it could be
reasonably suggested that the witness was beholden to the police. However, Appellant did not
argue in the trial court and does not argue on appeal that the arrest made Conner a biased witness,
and there was no evidence that he would receive favorable or more lenient treatment on his pending
case in exchange for his testimony. The evidence was not necessary to correct any
misrepresentations because Conner did not testify on direct examination that he was a police officer
or that he had not been arrested. Finally, Conner‟s arrest does not show a lack of capacity.
2
The Lagrone decision was based on the then extant Texas Criminal Rule of Evidence 608(b), but the
language of that rule and the current Texas Rule of Evidence 608(b) are the same.
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Because Appellant‟s proffered evidence is inadmissible under both rule 608(b) and rule 609,
the trial court properly excluded the evidence of Conner‟s arrest for impersonating a peace officer.
We overrule Appellant‟s first issue.
FAILURE TO GRANT MISTRIAL
In his fourth issue, Appellant argues that the trial court erred in denying his two motions for
mistrial. Specifically, Appellant complains that two improper statements by a police officer during
the punishment phase of the trial left the jury with a false impression and contributed to the sentence
assessed by the jury.
Applicable Law
A trial court‟s denial of a motion for mistrial is reviewed under an abuse of discretion
standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Thus, we must uphold the
trial court‟s ruling if it was within the zone of reasonable disagreement. Id. Mistrial is required
“[o]nly in extreme circumstances, where the prejudice is incurable . . . .” Id. (quoting Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A trial court grants a mistrial “to end trial
proceedings when faced with error so prejudicial that „expenditure of further time and expense
would be wasteful and futile.‟” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)
(quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). Generally, a prompt
instruction to disregard cures error associated with an improper question and answer. Simpson, 119
S.W.3d at 272. The trial court must grant the mistrial only when the improper question and answer
are clearly prejudicial and “of such character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jurors.” Id. (quoting Wood, 18 S.W.3d at 648). In
determining whether improper testimony warrants a mistrial, we balance (1) the severity of the
misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction
absent the misconduct. See Archie, 221 S.W.3d at 700 (applying these factors to improper jury
argument).
Analysis
During the punishment phase of the trial, the State called Butch White, a police officer with
the city of Nacogdoches. The State asked White about Appellant‟s reputation in the community, to
which White responded, “Street level narcotics dealing.” Appellant objected, and the trial court
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sustained the objection. Appellant requested an instruction for the jury to disregard the testimony,
and the trial court instructed the jury to disregard. Appellant then requested a mistrial. The trial
court denied Appellant‟s motion for mistrial.
Later, the State asked White if he had personal knowledge of an investigation involving
Appellant in 2006. White responded, “In 2005, I assisted the Deep East Texas Narcotics Task
Force with a controlled purchase of cocaine from [Appellant].” The State had not given Appellant
notice of this extraneous offense in its pretrial disclosure of evidence. Appellant asked to approach
the bench. After the trial court sent the jury out of the courtroom, Appellant objected to the
reference to the 2005 drug transaction. The trial court sustained the objection. Appellant requested
the trial court to instruct the jury to disregard. Again, the trial court agreed to instruct the jury to
disregard the testimony. Additionally, the trial court instructed the State to clarify for the jury that
Appellant was not charged with any crime in 2006. Appellant made a second motion for a mistrial,
and the trial court again denied Appellant‟s motion. The jury then returned to the courtroom. The
trial court instructed the jury to disregard the matter that White testified about in 2005, and the State
elicited testimony from White that Appellant had not committed a crime in 2006.
The State does not argue that White‟s testimony was proper. Instead, the State argues that
White‟s testimony in these two instances was not of such a nature as to render a fair and impartial
verdict impossible to reach. We agree.
First, while we do not condone the introduction of improper evidence, we do not believe this
to be the kind of evidence that creates an incurable prejudice. See Archie, 221 S.W.3d at 699. This
is so, in part, because the evidence that should not have come before the jury was the officer‟s
opinion that Appellant was a drug dealer and evidence of another drug transaction. This evidence is
consistent with the evidence that was properly admitted including evidence of two drug
transactions, one of which the jury did not find Appellant guilty of committing, and evidence of his
two prior convictions for delivery of a controlled substance. Second, the trial court immediately
responded with an instruction for the jury to disregard the evidence and an instruction for the State
to clarify that Appellant had not committed a crime in 2006. Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even one regarding
extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
The evidence that was improperly placed before the jury came during the punishment phase
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of the trial. Appellant had been found guilty of one offense and confessed that he had two prior
convictions for delivery of a controlled substance. In that context, the trial court‟s prompt and
thoughtful remediative efforts were sufficient to cure the prejudice caused by the evidence that
should not have come before the jury, and the trial court acted within its discretion in denying
Appellant‟s two motions for mistrial. We overrule Appellant‟s fourth issue.
JURY CHARGE
In his fifth issue, Appellant contends that the trial court erred by refusing to instruct the jury
to be skeptical of the testimony of a confidential informant.
Applicable Law
In criminal jury trials, the trial court must deliver “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). Because
the charge instructs the jury on the law applicable to the case, it must contain an accurate statement
of the law and set out all essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339
(Tex. Crim. App. 1995). A defendant must be given an opportunity to examine the charge and
object to any errors of commission or omission. See id.; TEX. CODE CRIM. PROC. ANN. art. 36.15
(Vernon 2006). A defendant further may request additional instructions either in writing or dictated
to the court reporter in the presence of the court and the state‟s counsel before the reading of the
court‟s charge to the jury. Id.
Where an appellant has properly preserved an issue for review, we must ascertain if error
actually occurred. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). If error occurred
and was properly preserved, reversal is required if the error was calculated to injure the rights of the
defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In other words, an
error that has been properly preserved will require reversal only if the error is not harmless. Id. We
evaluate the issue of harm “in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole.” Id.
Analysis
Appellant argues that the trial court erred in not giving the following instruction taken from
the federal court system:
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The testimony of a confidential informant, and the testimony of one who provides evidence against a
defendant as a confidential informer for pay or for immunity from punishment or for personal
advantage or vindication, must always be examined and weighed by the jury with greater care and
caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness‟s
testimony has been affected by any of those circumstances, or by the witness‟s interest in the outcome
of the case, or by prejudice against the defendant, or by the benefits that the witness has received
either financially or as a result of being immunized from prosecution. You should keep in mind that
such testimony is always to be received with caution and weighed with great care.
Instead, the trial court utilized Texas law when instructing the jury. The jury was instructed as
follows:
A defendant cannot be convicted of the offense charged on the uncorroborated testimony of a person
who is not a licensed peace officer or a special investigator but who was acting covertly on behalf of a
law enforcement agency or under the color of law enforcement.
The testimony of [Conner] must be corroborated.
In order to find a person guilty of the offense of delivery of a controlled substance, the proof (if any)
of an offer to sell must be corroborated by:
(1) a person other than the person to whom the offer is made, or
(2) evidence other than a statement of the person to whom the offer is made.
If you find no such corroboration, then you shall find the defendant “not guilty.”
The other evidence required to corroborate the testimony of [Conner] is not sufficient if it merely
shows the commission of the offense.
Appellant has not presented us with, and we have not found, any Texas authority for the jury
instruction he proposed. In fact, this court has previously held that a similar instruction is a
violation of longstanding Texas law forbidding the trial court from commenting on the credibility of
a witness. See Lee v. State, No. 12-05-00359-CR, 2007 Tex. App. LEXIS 977, at *26–31 (Tex.
App.–Tyler, Feb. 9, 2007, no pet.) (mem. op., not designated for publication). The trial court
included an accurate statement of Texas law regarding the requirement for corroboration of a
confidential informant‟s testimony. Texas law requires nothing further. Consequently, Appellant
has failed to show error in the trial court‟s charge. Appellant‟s fifth issue is overruled.
CONCLUSION
We have overruled Appellant‟s five issues. However, we note the judgment lists the offense
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date as March 26, 2009, instead of April 16, 2009. We have the authority to modify a judgment to
speak the truth when we have the necessary information before us to do so. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529 (Tex. App.–Dallas 1991, pet. ref‟d). Therefore, we modify the trial court‟s
judgment to show the date of offense is April 16, 2009, and affirm the judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered January 19, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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