11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Maurice Charles Henry

Appellant

Vs.                   No. 11-00-00322-CR  -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Maurice Charles Henry of unlawful possession of a controlled substance (less than one gram of cocaine).  After a presentence investigation and upon appellant=s plea of Atrue@ to two enhancement allegations, the trial court sentenced him to confinement for a term of 5 years.  We affirm.

                                                                  Issues Presented

Appellant presents two issues for appellate review.  He argues that the evidence is both Alegally insufficient@ and Afactually insufficient@ to support the finding that he possessed the cocaine.

                                                              Standards of Review

The evidence is Alegally insufficient@ to support a conviction (entitling appellant to a judgment of acquittal) if the reviewing court finds, after considering all of the facts in the Alight most favorable to the verdict,@ that a rational trier of fact could not have found all of the elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979);  Mason v. State, 905 S.W.2d 570, 574 (Tex.Cr.App. 1995), cert. den=d, 516 U.S. 1051 (1996).

The evidence is Afactually insufficient@ to support a conviction (entitling appellant to a remand for a new trial) if the reviewing court, after considering all of the evidence in a Aneutral light,@ concludes either that Athe evidence is factually insufficient to support a finding of a vital fact@ or that Athe finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.@  Goodman v. State, ___ S.W.3d ___ (No. 0120-00, Tex.Cr.App., November 21, 2001)(not yet reported); see also Johnson v. State, 23 S.W.3d 1, 7-9 (Tex.Cr.App. 2000); Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Cr.App. 1996).

The jury is the Aexclusive judge@ of the facts which are proved.  TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981).  See, e.g., Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Cr.App. 1987); Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982); and Miller v. State, 566 S.W.2d 614, 618 (Tex.Cr.App. 1978).

                                                           Evidence Before the Jury

There were five witnesses who testified before the jury.  They were the four Dallas Police Officers who participated in the arrest and the chemist who tested the contraband found in connection with appellant=s arrest.  All of the officers testified that they were licensed peace officers. The record shows that the officers were assigned to the Southeast Patrol Division of the Dallas Police Department.

The first witness, Officer Phillip Elliott, testified that he was Aconducting surveillance@ from a building which let him observe the parking lot outside a liquor store near the Frazier Courts housing project in the southeast part of the City of Dallas on February 15, 2000.  Officer Elliott testified that he began surveillance at approximately 6:00 p.m., that it was still light outside, and that he had a clear view of what appeared to be Adrug activity@ in which appellant was involved.  Relevant portions of Officer Elliott=s testimony read as shown:

Q: Okay.  What did you see?

A: I first observed [appellant], along with several other individuals standing in front of the liquor store, which faces Spring [Street].  A blue Buick drove up into the parking lot, which would be to the left side of that liquor store.

[Appellant] approached that vehicle, engaged in conversation, then...went into the projects.  The Buick left.  Some time passed.  And I observed, you know, the other individuals hanging out. 

[Appellant] then came back, crossing the road in the same direction that he had went previously, returned back and walked between the red building and the white building.  The red building right behind the white building that faces Spring [Street].  He came out on the right side, which is depicted in State=s Exhibit No. 2, where I couldn=t see the officer.  I saw him walk from that area coming back to Spring [Street].  He stood out there for awhile, then he mingled back towards the liquor store. 

Then a female in a white Olds drove into the parking lot and went into the parking lot, but not quite to the opening between the red building and the white building.  And [appellant] went up and conversed with her.  Then he walked that same area that he had walked between the red and white building and was out of my sight for a short time.

[After a demonstrative chart was introduced and discussed, the witness identified appellant as the man he saw that day.  There was then testimony about conversations which appellant had with the drivers of automobiles which pulled into the parking lot and about appellant=s movements to and from the opening between two buildings.]

Q: Okay.  And then what happened?

A: As he returns and he=s standing here, a female in a white Olds drove up and parked maybe about midway from the store, towards the right side.  He walked around, talked with her.  Very brief discussion.

Q: From the driver=s side or the passenger=s side?

A: He went to the driver=s side.  Then he went around the building this way.  Gone a short time, came back around the building and went up and conducted what I thought was a drug transaction.

                                                            *   *   *

Q: Okay.  So what did you do?

A: I radioed the information to other officers that were out there.  I believe another officer dropped [Officer Rudloff] off to watch from the other side.

                                                *   *   *

Q: Okay.  What did you observe next?

A: [Appellant] came back again to blue Olds and conducted basically the same thing as what I saw before with the female.  Pretty same scenario.  Except this time I could see a bag - - a clear bag in his hand.

                                                            *   *   *

Q: Okay.  And what did you continue to do?

A: As I=m watching him, I receive a radio transmission right as I was starting to come back around, from Officer Rudloff.  And he says, AI see where he put it,@ or something to that effect....[W]hen he told me that, I told him to come on, because I had a visual on him at this point. 

In other words, for the other cover officers to come in to detain him....I could hear what was going on.

Q: All right.  What did you observe next?

A: Officer McDonald brought [appellant] back to this parking lot.  I then told [the officer] that was him.

[Officer Elliott said that he took custody of the drugs and that they took appellant to the jail.  Officer Elliott then described the field test on the drugs and the procedure for his end of the chain of custody of the drugs.]

During cross-examination by appellant=s counsel, Officer Elliott denied that it was dark.  He admitted that he did not have binoculars or anything of that nature and that he did not have any audio or video recording equipment or camera with him.  He also agreed that he was not close enough to hear what was said during the conversations that he observed.  He also agreed that he never saw appellant Ahave narcotics directly in his hand.@  Officer Elliott testified that he arrived at the scene Abefore 6:00," that the A6:20" shown in the report is the approximate time when Corporal Klinglesmith retrieved the drugs after appellant conducted the drug transactions, and that it was still daylight enough for him to see.

The second witness, Officer Roger Rudloff, testified that he was working with Officer Elliott, Corporal Klinglesmith, Officer McDonald, and Officer Bricker on February 15, 2000, when he came into contact with appellant.  They were conducting surveillance on a drug location in South Dallas.  Officer Elliott had Aset up across the street from a place@ where they had gotten a complaint about someone selling drugs.  Officer Elliott called him on the radio to give him instructions on where to get in order to see where the drug dealer was hiding the drugs.  Officer Rudloff got into position behind a tree where he could watch from a distance.  He said that he was less than 100 yards away, that it was daylight, and that he had a clear view.  He was looking through binoculars.  He identified appellant as the man who walked between the two buildings, came to the area where there were some traffic cones, reached over, and put something under one of the cones.  Officer Rudloff got on the radio and told the other officers that he had seen where appellant put what he thought were drugs and that he knew Awhere his hiding place was.@  Officer Rudloff maintained visual contact of the cones and told Corporal Klinglesmith on the radio to look under the traffic cones.  Officer Rudloff saw him pick something up, Awhich he stated over the radio was cocaine.@  At that point, Officer Rudloff called Officer McDonald on the radio and told him to take appellant into custody.  Officer Rudloff then walked down to make sure it was the same person.  He identified appellant in open court as the man who had placed the object under the cones.

The third witness, Corporal Troy Klinglesmith, testified that on February 15, 2000, he dropped Officer Elliott off for him to try to get a place of concealment to watch the activity near a little store in the 4900 block of Spring Avenue where they believed there was drug activity.  He is the officer who responded to the radio call to go to the traffic cones, and he is the one who retrieved the contraband from under the traffic cone.  He said that it was a Aplastic bag with some crack rocks in it.@  He identified the bag which he had given to Officer Elliott.  On cross-examination, he agreed that he did not see appellant Aactually handle those drugs.@  Corporal Klinglesmith was the senior officer on the arrest.            

The fourth witness, Dee Ann Hickerson, was employed by the Southwest Institute of Forensic Sciences.  She proved her end of the chain of custody and testified that the contraband was tested and weighed.  The six bags contained a substance with a gross weight of .27 grams.  It was 70 percent cocaine, and the cocaine itself weighed .19 grams.

The last witness, Officer Samuel Scott McDonald, testified that he was working on February 15, 2000, with Corporal Klinglesmith, Officer Elliott, and Officer Rudloff.  Two of the officers were conducting surveillance at a location where they had information that narcotics were being sold.  Officer McDonald was a Acover officer@ in uniform and in a marked police car.  Officer McDonald was monitoring the surveillance on his police radio.  Upon receiving a call from Officer Rudloff that the suspect was leaving the location, Officer McDonald detained the suspect.  Officer Rudloff then came and said, AYeah, that=s him.  That=s the one I saw.@  Then Officer McDonald arrested the suspect.  He identified appellant in open court as the man he arrested.  Officer McDonald said that it was Agetting darker@ at the time of the arrest but that it was not completely dark.

                                                                This Court=s Ruling

Both points of error are overruled.  The evidence discussed above is Alegally sufficient@ to support the conviction.  Jackson v. Virginia, supra; Mason v. State, supra.  The evidence is also Afactually sufficient@ to support the conviction.  Goodman v. State, supra; Cain v. State, supra; Clewis v. State, supra.

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

January 10, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[1]