NUMBER 13-10-00138-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MELVIN JOHNSON III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Melvin Johnson III, was convicted of possession of a controlled
substance with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West
2010). Johnson received a punishment of sixty years‘ imprisonment and a $10,000
fine.1 By three issues, Johnson contends that: (1) the evidence was legally and
factually insufficient to prove that he possessed a controlled substance with the intent to
deliver it; and (2) the trial court abused its discretion in denying his motion to suppress
evidence. We affirm.
I. BACKGROUND2
Deputy Jeremy Brown of the Matagorda County Sheriff‘s Department testified
that he conducted an investigation of Johnson using confidential informants. Deputy
Brown stated that during the course of his investigation, he identified 2928 Avenue B as
Johnson‘s residence. Deputy Brown observed Johnson ―coming and going from the
residence, sitting on the porch of the residence, [and] playing basketball with the child
outside of the residence.‖3 Deputy Brown stated that during the course of a search,
they usually look for items such as utility bills, a driver‘s license, or anything with
identifying information inside the residence. In this case, Deputy Brown testified that
after acquiring a search warrant and searching 2928 Avenue B, the police found
Johnson‘s driver‘s license and ―some scattered paperwork in the back room with the
name of Mr. Johnson on it.‖
1
After finding Johnson guilty of the offense, the jury found that Johnson was a repeat offender.
See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2010).
2
We note that the record reflects that Johnson ―refused‖ to sign the trial court‘s certification of
defendant‘s right of appeal. Pursuant to rule 25.2(d), the trial court‘s certification ―shall include notice that
the defendant has been informed of his rights concerning an appeal, as well as any right to file a pro se
petition for discretionary review.‖ See TEX. R. APP. P. 25.2(d). Although the certification shows that
Johnson refused to sign it, the record reflects that Johnson was notified of his rights under rule 25.2(d).
The record also contains a letter from Johnson‘s trial counsel stating that he explained those rights to
Johnson. Moreover, Johnson filed a timely notice of appeal, and both Johnson and the State have filed
briefs in this case. Therefore, we conclude that rule 25.2(d)‘s requirements have been met in this case.
3
Deputy Brown testified that based on his investigation, Johnson lived at the residence with ―a
younger child.‖
2
According to Deputy Brown, during the course of the investigation, the
confidential informant purchased narcotics at Johnson‘s residence, and based on that
information, Deputy Brown obtained a warrant to search Johnson‘s residence for
narcotics. Deputy Brown testified that a SWAT team was used to effectuate the search
warrant. Deputy Brown stated that the role of the SWAT team was to make entry into
the house and to secure the residence from any potential threats. Deputy Brown
assisted the SWAT team ―with the control outside . . . the house.‖ Deputy Brown
testified that Johnson was present in the residence when entry was made and that no
one else was present inside the residence. Johnson‘s son was outside playing
basketball when the team made entry into the residence.
After the residence was secure, Deputy Brown executed the search warrant.
According to Deputy Brown, the police found ―some crack cocaine in the pocket of a
jacket that was hanging on a door separating the living room from the bedroom.‖ 4
Deputy Brown stated that the crack cocaine was ―in the front pocket of the jacket where
your hands go.‖ Deputy Brown explained that there were two ―rocks‖ of crack cocaine
that were ―loose,‖ meaning that the pieces were not in any type of packaging. Deputy
Brown documented that the crack cocaine weighed over one gram and less than four
grams.
Deputy Brown testified that in cases of possession of crack cocaine, as opposed
to cases of intent to deliver, the police usually find paraphernalia that is used to ingest
the drugs, such as a crack pipe made of glass or a type of metal, brillo steel wool, and
needles. Deputy Brown stated that he has also observed that in cases of possession
4
Deputy Brown described the residence as as follows: ―It was a wood frame, one bedroom.
Basically, had a bedroom, bathroom, living room, and kitchen. That was basically it.‖
3
with intent to deliver, the police find larger amounts of the drug. Deputy Brown stated,
―A user in my past—as a user, as soon as they get their hands on [the drug], they‘re
going to ingest it as soon as they can. There‘s not going to be amounts of crack
cocaine throughout the residence.‖
According to Deputy Brown, to make crack, powder cocaine is ―cooked down into
a rock form‖ which is usually ―a round circle‖ called a ―cookie‖ that reminded Deputy
Brown of a sugar cookie. This cookie is then ―broke[n] down into denominations to what
it‘s going to be sold to the potential buyers.‖ Deputy Brown stated that users will have
small amounts of the drug while dealers have larger quantities and the amounts sold by
drug dealers are ―[a]nywhere from $5 to, you know [$]50, a hundred. You know around
here, we see a lot of 10-and 20-dollar amounts sold.‖ Deputy Brown testified that a 20-
dollar amount of crack cocaine is ―just a real small, small quantity, small rock for $20.
Definitely less than a gram.‖ Deputy Brown agreed that crack cocaine would not be
sold in the amount found in the residence and that amount would have to be ―broken
down‖ into smaller pieces. According to Deputy Brown, the amount of crack cocaine
found in the residence was valued ―[b]etween [$]150 and $200 worth of crack.‖ On
cross-examination, Deputy Brown explained Johnson‘s intent to deliver the crack
cocaine was shown by the amount of the drug that was found in his residence, among
other things. Deputy Johnson stated, ―That‘s not a quantity for a user. . . . I‘ve never
seen a crack pipe that you can put that type of—or that size of rock cocaine in.‖
According to Deputy Brown, they did not find any drug paraphernalia, such as
brillo, a pipe, tubing, or needles. When asked if he found ―anything that suggested to
[him] that cocaine was being used in that residence,‖ Deputy Brown replied, ―no,
4
ma‘am.‖ Deputy Brown acknowledged that they did not find any money, packaging, or
scales during the search. However, Deputy Brown explained that it is ―very common‖
for crack to be sold without any packaging and usually crack cocaine in this amount is
sold by size and not by weight. When asked if someone could sell crack cocaine
without scales, cooking implements, or packaging, Deputy Brown responded, ―Oh, yes,
ma‘am.‖
Sergeant James Nesbitt of the Matagorda County Sheriff‘s Narcotics Division
testified that ―mid[-]level dealer[s]‖ are not usually manufacturers of crack cocaine—they
are not involved in ―cooking the dope.‖ Instead, the mid-level dealers purchase the
crack cocaine from someone else who may have manufactured the drug. These
manufacturers are also considered drug dealers. According to Sergeant Nesbitt,
powder cocaine is cooked into ―a circle of crack‖ called a ―cookie.‖ The cookie is formed
―[u]sually from the jars and stuff that it‘s made in.‖ Sergeant Nesbitt stated that once the
cookie is made ―[f]rom that it‘s cut up to either halves or quarters or either sold as a
cookie and then it goes down to the [$]10, 20-dollar rocks.‖ Sergeant Nesbitt agreed
that the mid-level drug dealer would not have any manufacturing and packaging
material ―if he‘s already buying it premade.‖ Sergeant Nesbitt agreed that the crack
cocaine found in the residence was consistent with what a mid-level dealer might have
in his possession. According to Sergeant Nesbitt, the larger pieces of the crack cocaine
would be divided into smaller pieces worth five dollars to one hundred dollars
―depending on the user that goes to purchase.‖ Sergeant Nesbitt explained that the
crack could be broken with fingernails or thumbnails, ―anything like that.‖ Sergeant
Nesbitt testified that the two pieces of crack cocaine found in the residence could not be
5
smoked in a crack pipe and would have to be ―broken down‖ if one wanted to smoke
them. In other words, the pieces of crack cocaine found were not ―in user form.‖
Sergeant Nesbitt testified that he conducted surveillance of Johnson before the
warrant to search the residence was issued. During the surveillance, Sergeant Nesbitt
observed ―people come to the house, stay there for a minute or two, or maybe
sometimes a little longer, and then get back out and leave.‖ When asked if he saw
―very many people do that,‖ Sergeant Nesbitt replied, ―Yes, sir.‖ Sergeant Nesbitt
acknowledged that he did not know what these people were doing at the residence;
however, he stated that based on his experience he grew suspicious of the activity.
Sergeant Nesbitt said that based on the fact that so many people were ―in and out so
fast,‖ he believed that narcotic deals were occurring.
Sergeant Nesbitt stated that the amount of crack cocaine found in the residence
was worth approximately ―anywhere from [$]150 to $200.‖ Therefore, 1.3 grams could
be broken down into twenty rocks and sold for $10 per rock. Sergeant Nesbitt agreed
that he had ―dealt with some of the crack heads‖ in Matagorda County and Bay City.
Sergeant Nesbitt stated that he saw some of the ―crack heads‖ spend one or two
minutes at Johnson‘s residence during his surveillance. Sergeant Nesbitt testified that
he did not believe that a ―crack head‖ would go to Johnson‘s residence and hide their
―dope‖ at his house and then leave because a ―crack head‖ would use the drug. In his
experience, drug dealers usually hide their drugs so that it will not be stolen or found by
the police. Sergeant Nesbitt did not have any reason to believe that the crack cocaine
found in the residence belonged to anyone but Johnson.
6
Officer Theresa Mendoza, the ―I.D. Officer‖ for the Matagorda County Sheriff‘s
Office, testified that her job duties include processing crime scenes and maintaining
care, custody, and control of all evidence or property that is received by the sheriff‘s
office. This includes maintaining the evidence lockers at the sheriff‘s department. She
explained that an officer who obtains evidence will deposit the evidence into an
evidence locker and then Officer Mendoza locks the locker. No one except Officer
Mendoza can access the evidence once it is in the locker because she is the only
person who has a key to those lockers. If an officer requests that the evidence be sent
to the lab for testing, Officer Mendoza packages it and then transports that evidence to
the lab and drops it off for analysis. Officer Mendoza transports drugs to the
Department of Public Safety‘s lab in Houston, Texas. The lab then analyzes the drugs
and generates a report that is sent to Officer Mendoza‘s agency. Officer Mendoza
keeps a copy of the report for her files and provides a copy to the investigating officer.
Officer Mendoza then picks up the evidence from the lab.
Officer Mendoza testified that Deputy Brown submitted some evidence for testing
in Johnson‘s case. Officer Mendoza testified that she transported the substance to the
Department of Public Safety for analysis. The State offered State‘s exhibits 1, 2, and 6
into evidence. Defense counsel stated, ―Your Honor, there will be no objections to
[e]xhibits 1, 2, and 6.‖ Officer Mendoza described exhibit 1 as the substance found in
Johnson‘s residence, exhibit 2 as a report generated by the lab concerning the
substance found, and exhibit 6 as the ―book-in information‖ related to Johnson‘s case.
The trial court admitted the three exhibits into evidence. Officer Mendoza testified that
the lab report showed that State‘s exhibit 1 contained 1.30 grams of cocaine. Officer
7
Mendoza agreed that the ―book-in sheet‖ showed that Johnson provided 2928 Avenue
B as his address.
II. LEGAL SUFFICIENCY
By his first and second issues, Johnson contends that the evidence is legally and
factually insufficient to prove that he possessed a controlled substance with the intent to
deliver it. Johnson argues that the State failed to establish beyond a reasonable doubt
that he either knowingly possessed or knowingly intended to deliver the cocaine in an
amount more than one gram but less than four grams.
A. Standard of Review and Applicable Law
The court of criminal appeals has held that there is ―no meaningful distinction between
the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency
standard‖ and that the Jackson 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.‖
Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. Crim. App. 2010) (plurality op.).
Accordingly, we review Johnson‘s claims of evidentiary sufficiency under ―a rigorous
and proper application‖ of the Jackson standard of review. Id. at 906-07, 912.
Moreover, we do not refer separately to legal or factual sufficiency and will only analyze
Johnson‘s issues under the Jackson standard. See id. at 985 (concluding that there is
no meaningful distinction between a legal and factual sufficiency analysis).
Under the Jackson standard, ―the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.
8
Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (explaining that
in the Jackson standard we consider ―all of the evidence in the light most favorable to
the verdict,‖ and determine whether the jury was rationally justified in finding guilt
beyond a reasonable doubt). ―[T]he fact[-]finder's role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is to
be considered in the light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319
(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979)
(―The jury, in all cases is the exclusive judge of facts proved and the weight to be given
to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)
(―The jury is the exclusive judge of the credibility of witnesses and of the weight to be
given testimony, and it is also the exclusive province of the jury to reconcile conflicts in
the evidence.‖).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.–Corpus Christi 2004, pet. ref‘d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). The elements of the offense of possession of a controlled
substance with the intent to deliver are that the defendant: (1) possessed a controlled
substance in the amount alleged; (2) intended to deliver the controlled substance to
another; and (3) knew that the substance in his possession was a controlled substance.
Figueroa v. State, 250 S.W.3d 490, 500 (Tex. App.–Austin 2008, pet. ref‘d).
B. Possession
To prove unlawful possession, the State must have presented sufficient evidence
that Johnson exercised control, management, or care over the substance and that he
9
knew the item possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005). ―Whether this evidence is direct or circumstantial, ‗it must
establish, to the requisite level of confidence, that the accused‘s connection with the
drug was more than just fortuitous. This is the whole of the so-called ‗affirmative links‘
rule.‘‖ Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.
1995)). This rule has been established to protect an innocent bystander from conviction
based solely upon his fortuitous proximity to someone else‘s drugs. Id. at 406. In other
words, a roommate, spouse, or relative may jointly possess a house but not necessarily
possess the contraband. Id. Thus, ―when the accused is not in exclusive possession of
the place where the substance is found, it cannot be concluded that the accused had
knowledge of and control over the contraband unless there are additional independent
facts and circumstances which affirmatively link the accused to the contraband.‖ Id.
Texas courts have recognized as sufficient to establish a person‘s possession of
contraband a non-exclusive list of possible ―affirmative links,‖ considered either singly or
in combination.5 Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)
(discussing ―affirmative links,‖ which is legal jargon for the large variety of circumstantial
evidence that may establish a knowing possession of contraband); Roberts v. State,
321 S.W.3d 545, 549 (Tex. App.–Houston [14th Dist.] 2010, no pet.) (―[P]resence or
5
The court of criminal appeals has considered, among other things, the following factors: (1) the
defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the
defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics
when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the
defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an
odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the drugs were found; (12) whether the
place where the drugs were found was enclosed; (13) whether the defendant was found with a large
amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans
v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
10
proximity combined with other direct or circumstantial evidence (e.g. ‗links‘) may be
sufficient to establish the elements of possession beyond a reasonable doubt.‖).
However, the affirmative link terminology does not constitute a unique
legal rule, but is only a shorthand way of expressing what must be proven
to establish that drugs were possessed knowingly or intentionally. Indeed,
the number of linking factors present is not as important as the ―logical
force‖ they create to prove that the crime was committed.
Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.–Houston [1st Dist.] 2002, pet. ref‘d)
(internal citations omitted).
Here, the State presented evidence that Johnson lived at 2928 Avenue B with his
son.6 Deputy Brown testified that he found Johnson‘s license and other paper work at
the residence and that he determined this was Johnson‘s residence because he
observed Johnson ―coming and going from the residence, sitting on the porch of the
residence, [and] playing basketball with the child outside of the residence.‖
Furthermore, Johnson indicated on his ―book-in sheet‖ that 2928 Avenue B was his
address.
Deputy Brown testified that as a narcotics investigator, he often relies on
confidential informants to purchase drugs from a drug dealer in order to acquire a
search warrant of the premises. In those cases, Deputy Brown does not arrest the
dealer for making the sale to the confidential informant, but merely uses that information
to get the warrant. In this case, during his investigation of Johnson, Deputy Brown
utilized a confidential informant to acquire the search warrant of Johnson‘s residence.
Deputy Brown testified that the confidential informant made narcotics purchases at
6
In his brief Johnson appears to assert that others were present when the search warrant was
executed; however, Johnson points to no evidence in the record that anyone else was present in the
residence when police searched it, and we find none. Moreover, both officers who were present during
the search testified that Johnson was alone in the residence when they executed the warrant. No one
else who was present during the search testified.
11
Johnson‘s residence. Based on this activity, Deputy Brown acquired a warrant to
search the residence.
During the search, Deputy Brown found two pieces of crack cocaine in a hooded
jacket hanging on the door of the only bedroom in the residence. Johnson was alone in
the residence. When asked if he found ―anything that suggested that the juvenile was
involved‖ in the selling of the narcotics, Deputy Brown replied, ―No.‖ Deputy Brown
agreed that all of the information he had and that his surveillance ―reflected upon‖
Johnson.
On cross-examination, Deputy Brown stated that during his investigation using
the confidential informant, ―every time [they] went to [Johnson‘s] house there was
narcotics at the house . . . basically from the informant standpoint.‖ Deputy Brown also
reiterated that Johnson was the only person living at that residence that he suspected
had narcotics. Deputy Brown did not suspect that anyone else living at that residence
had narcotics. Deputy Brown also acknowledged that he informed the magistrate
before acquiring the warrant that there was ―a lot of traffic coming in and out‖ of the
residence.
Sergeant Nesbitt testified that during his surveillance of Johnson‘s residence, he
saw a lot of ―people come to the house, stay there for a minute or two, or maybe
sometimes a little longer, and then get back out and leave.‖ Based on this information
and his training and experience, Sergeant Nesbitt believed that narcotic deals were
being conducted at Johnson‘s residence. Sergeant Nesbitt testified that during his
surveillance, he observed known ―crack heads‖—people who are addicted to crack
cocaine—going to Johnson‘s residence and spending one or two minutes there.
12
Sergeant Nesbitt also stated that ―crack heads‖ would not hide their drugs in Johnson‘s
residence because a ―crack head‖ would use the drugs. Sergeant Nesbitt stated that
along with Deputy Brown‘s investigation and his surveillance, a warrant was issued to
search Johnson‘s house. When asked if his investigation gave him any reason to
believe that Johnson‘s son was involved in the drug transactions he observed, Sergeant
Nesbitt stated, ―No, sir.‖ Sergeant Nesbitt also stated that based on his investigation
and surveillance, he did not believe that anyone other than Johnson was involved in
selling narcotics at this location.
In Poindexter v. State, the court of criminal appeals held that an out-of-court
statement of a confidential informant that he bought drugs from appellant was sufficient
to establish an affirmative link between appellant and the crack cocaine found in his
home.7 153 S.W.3d at 409. Here, we have both Deputy Brown‘s and Sergeant
Nesbitt‘s testimony that a confidential informant bought drugs from Johnson at his
residence. See id. This factor alone is enough to link Johnson to the crack cocaine
found in his residence. See id. Furthermore, the crack cocaine was accessible only to
one who exercised control over the residence, and both officers testified that they did
not believe Johnson‘s son—the only other person residing at the residence—was in any
way connected to the drugs. See id. Next, the evidence showed that Johnson was the
owner of the premises where the crack cocaine was found. See id. Further, because
Johnson lived at the residence where the contraband was found, the contraband was
certainly more accessible to him than to someone who did not reside there; and, again
based on their investigations, both officers stated that Johnson‘s son was not involved
7
In Poindexter, the appellant was not home when the officers found the drugs. 153 S.W.3d 402,
405 (Tex. Crim. App. 2005).
13
in the sale of drugs at this residence. See id. Thus, the State presented sufficient
evidence that Johnson exercised control, management, or care over the substance
found in his residence. See Poindexter, 153 S.W.3d at 405. Viewing the evidence in
the light most favorable to the prosecution, we conclude that a rational trier of fact could
have found that Johnson knowingly possessed the crack cocaine beyond a reasonable
doubt.‖ See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 898-99. We overrule
Johnson‘s first issue.
C. Intent to Deliver
Intent to deliver may be established by expert testimony, such as testimony from
an experienced law enforcement officer, and circumstantial evidence. Moreno v. State,
195 S.W.3d 321, 325-26 (Tex. App.–Houston [14th Dist.] 2006, pet. ref‘d); Ingram v.
State, 124 S.W.3d 672, 675 (Tex. App.–Eastland 2003, no pet.). ―Inferences can be
made from the conduct of the defendant as well as the amount of the controlled
substance possessed and the manner in which it was possessed.‖ Ingram, 124 S.W.3d
at 675-76. Some circumstantial factors to consider are: ―(1) the nature of the location
at which the accused was arrested; (2) the quantity of contraband in the accused‘s
possession; (3) the manner of packaging; (4) the presence or lack thereof of drug
paraphernalia (for either use or sale); (5) the accused‘s possession of large amounts of
cash; and (6) the accused‘s status as a drug user.‖ Moreno, 195 S.W.3d at 325-26;
Erskine v. State, 191 S.W.3d 374, 380 (Tex. App.–Waco 2006, no pet.). The number of
factors present is not as important as the logical force the factors have in proving the
elements of the offense. Moreno, 195 S.W.3d at 326. Intent is a question of fact that is
determined by the trier of fact. Ingram, 124 S.W.3d at 676. ―Intent can be inferred from
14
the acts, words, and conduct of the accused.‖ Moreno, 195 S.W.3d at 326 (citing
Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)).
Here, Sergeant Nesbitt testified that he observed ―crack heads‖ and other
individuals go to Johnson‘s residence and stay for only one or two minutes and then
leave. Deputy Brown testified that according to the confidential informant, every time
they went to Johnson‘s residence, there were drugs. The evidence showed that a
warrant was issued after the confidential informant purchased drugs at Johnson‘s
residence, and both officers testified that, based on their investigations, Johnson‘s son
was not involved in selling drugs.
Sergeant Nesbitt testified that a mid-level dealer will usually have crack cocaine
in larger quantities for sales purposes, whereas users, ―as soon as they get their hands
on [the drugs], they‘re going to ingest it as soon as they can.‖ The evidence showed
that none of the tools necessary for ingesting crack cocaine were found in Johnson‘s
residence, which according to Deputy Brown indicated that Johnson was not a user of
the drug.
Sergeant Nesbitt stated that a factor he considered as showing that Johnson
intended to deliver the cocaine was the quantity found. He stated, ―That‘s not a quantity
for a user. . . . I‘ve never seen a crack pipe that you can put that type of—or that size of
rock cocaine in.‖ According to Sergeant Nesbitt, the quantity of crack cocaine found
would need to be ―broken down for the user,‖ and it is ―normal‖ for a mid-level dealer to
break down a larger piece of crack cocaine in order to sell the smaller pieces usually for
five, ten, or twenty dollars. Sergeant Nesbitt stated that it is also normal for mid-level
15
drug dealers to keep larger pieces of crack cocaine because they will wait to break off a
piece of the crack cocaine until the user requests a certain amount.
Viewing the evidence in a light most favorable to the jury's verdict, we find that
the evidence was sufficient for the jury to have determined beyond a reasonable doubt
that Johnson possessed the crack cocaine with the intent to deliver. See Jackson, 443
U.S. at 319; Brooks, 323 S.W.3d at 898-99. We overrule Johnson‘s second issue.
III. MOTION TO SUPPRESS
By his third issue, Johnson contends that the trial court abused its discretion by
denying his motion to suppress evidence—the crack cocaine. Specifically, Johnson
argues that the affidavit submitted in support of the search warrant issued in this case
did ―not set forth facts sufficient to establish probable cause that (1) a specific offense
has been committed, (2) specifically described property or items to be searched for and
seized constitute evidence of the offense, and (3) the property or items constituting such
evidence are located at the particular place to be searched.‖
It is well-settled that when a pre-trial motion to suppress evidence is overruled,
the defendant is not required to subsequently object at trial to the same evidence in
order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim.
App. 1986); Thomas v. State, 312 S.W.3d 732, 736 (Tex. App.–Houston [1st Dist.]
2009, pet. ref‘d); Adams v. State, 180 S.W.3d 386, 406 n.29 (Tex. App.–Corpus Christi
2005, no pet.) (citing Wilson v. State, 857 S.W.2d 90, 93 (Tex. App.–Corpus Christi
1993, pet. denied)). ―However, when the defendant affirmatively asserts during trial that
he has ‗no objection‘ to the admission of the complained of evidence, he waives any
16
error in the admission of the evidence despite the pre-trial ruling.‖ Moraguez, 701
S.W.2d at 904; Thomas, 312 S.W.3d at 736; Adams, 180 S.W.3d at 406 n.29.
Here, the record reflects that Johnson obtained an adverse ruling on his pretrial
motion to suppress the crack cocaine. However, when the State offered the offending
evidence during trial, Johnson‘s trial counsel stated, ―There will be no objections to [the
State‘s exhibits, including the crack cocaine].‖ Because Johnson affirmatively asserted
that he had no objection to the offending evidence, he has waived any error in the
admission of the evidence despite the pre-trial ruling. See Moraguez, 701 S.W.2d at
904; Thomas, 312 S.W.3d at 736; Adams, 180 S.W.3d at 406 n.29. Accordingly, we
overrule Johnson‘s third issue.
IV. CONCLUSION
We affirm the trial court‘s judgment.
____________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
2nd day of June, 2011.
17