Richards, Rodrick Dwayne v. State ( 2003 )

Affirmed and Memorandum Opinion filed February 27, 2003

Affirmed and Memorandum Opinion filed February 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00336-CR

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RODRICK DWAYNE RICHARDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 888,172

M E M O R A N D U M   O P I N I O N

Appellant, Rodrick Dwayne Richards, was convicted by a jury of possession of more than four grams of cocaine with intent to deliver the same.  The jury subsequently found two enhancement allegations to be true and assessed appellant=s punishment at confinement in the state penitentiary for a term of 45 years. In two points of error, appellant contends (1) the trial court erred in admitting evidence that was unlawfully seized by police, and (2) the evidence is factually insufficient.  We affirm.

On September 15, 2001, Houston Police Officer James Garris observed appellant, who was driving a sports utility vehicle, parked in the middle of a street.  A woman was standing outside the vehicle, leaning on the driver=s side window, and talking to appellant.  In addition to witnessing an obvious traffic violation, Officer Garris suspected the parties were also engaged in a narcotics transaction.  The vehicle was, in fact, stopped in front of a known narcotics house, and Garris had made numerous arrests on this street for narcotics violations.  Officer Garris pulled his patrol car in front of appellant=s vehicle, activated his emergency lights, and ordered the female to place her hands on the hood of the sports utility vehicle.  Officer Garris then ordered appellant to exit the vehicle. As he did so, a baggie of crack cocaine slipped from appellant=s lap onto the street.  Appellant was then arrested and charged with possession of cocaine.

In his first point of error, appellant contends the cocaine seized by Officer Garris was the product of an unlawful detention.  Appellant, however, made no objection to the introduction of the cocaine and did not move to suppress the evidence.  Accordingly, nothing has been preserved for our review.  Tex. R. App. P. 33.1; Tex. R. Evid. 103(a); Bennett v. State, 82 S.W.3d 397, 399 (Tex. App.CAustin 2002, no pet. h.).  Appellant=s first point of error is overruled.

In his second point of error, appellant claims the evidence is factually insufficient to support the jury=s verdict.  Specifically, appellant notes that Tywanna Allen, the woman who was talking to appellant at the time of his detention, testified that she did not see a baggie fall to the street when appellant exited his vehicle.  Instead, she said the officer recovered the baggie some distance from appellant=s door in an area where three men had been engaged in a drug transaction moments before Officer Garris arrived on the scene.

  When conducting a factual sufficiency review, the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.  Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).  In this endeavor, the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses.  Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.).  While we consider the factfinder’s weighing of the evidence and can disagree with the factfinder=s determination, we are not free to reweigh the evidence and set aside a verdict merely because we believe a different result is more reasonable.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  Thus, we must defer to jury findings and find the evidence factually insufficient  “only where necessary to prevent manifest injustice.”  Id.

Here, the State offered rebuttal testimony from Officers Sylvia Descours and Robert Blain, who arrived on the scene as “backup.”  Both officers testified they saw the baggie of cocaine on the street next to the driver=s side door where appellant exited the vehicle.  Reviewing all the evidence, we do not find the jury=s verdict to be clearly wrong and unjust.  Accordingly, appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

/s/        J. Harvey Hudson

Justice

Judgment rendered and Opinion filed February 27, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).