James Arthur Densey v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00049-CR

James Authur Densey,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 03-04509-CRF-272

MEMORANDUM  Opinion

      Appellant appeals his conviction for first-degree-felony possession of cocaine with intent to deliver.  See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).  We will affirm.

1.   Sufficiency of the Evidence.  In Appellant’s third and fourth issues, he contends that the evidence of his intent to deliver was insufficient.  Appellant argues that he was not in possession of guns or equipment for manufacturing crack, and did have a crack pipe.  The State points primarily to the following evidence.  A police officer saw Appellant about to deliver crack in a high-drug-traffic area.  Appellant was in possession of crack in a quantity and form for sale, and in possession of over $6000 in cash, in denominations for the purchase and sale of crack. 

1.   a.    Legal Sufficiency.  In Appellant’s third issue, he contends that the evidence was legally insufficient.  We hold that a rational trier of fact, viewing the evidence in the light most favorable to the verdict, could have found beyond a reasonable doubt that Appellant intended to distribute cocaine.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, No. AP-74,487, 2005 Tex. Crim. App. LEXIS 110, at *12-*13 (Tex. Crim. App. Jan. 26, 2005).  We overrule Appellant’s third issue.

1.   b.   Factual Sufficiency.  In Appellant’s fourth issue, he contends that the evidence was factually insufficient.  Viewing the evidence in a neutral light, the evidence is not so weak that the verdict is clearly wrong or manifestly unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met.  See Prible, 2005 Tex. Crim. App. LEXIS 110, at *16; Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).  We overrule Appellant’s fourth issue.

2.   Batson Objection.  In Appellant’s second issue, he contends that the trial court erred in overruling Appellant’s Batson objection.  See Batson v. Kentucky, 476 U.S. 79 (1986); Gibson v. State, 144 S.W.3d 530, 531 (Tex. Crim. App. 2004).  Three African-Americans were among the first thirty-six members of the voir-dire panel.  One sat on the jury, and the State used peremptory challenges against the other two.  The State gave, as race-neutral reasons for striking the two, that both favored rehabilitation over punishment, and that: (1) one had seen crack and had gone to school with Appellant; and (2) the other knew people that used crack.  Appellant argues that the State did not strike other panelists who had a poor opinion of crack users, or who valued rehabilitation.  The trial judge’s ruling was not clearly erroneous.  See Gibson at 533-34; Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992) (multiple race-neutral reasons).  We overrule Appellant’s second issue.

3.   Motion to Suppress Evidence.  In Appellant’s fifth issue, he contends that the trial court erred in overruling Appellant’s motion to suppress evidence.  Appellant contends that the circumstances of Appellant’s stop were such that the police officer could not have seen Appellant’s cocaine in plain view.  The trial court did not abuse its discretion in overruling the motion.  See State v. Mechler, 153 S.W.3d 435, 438-39 (Tex. Crim. App. 2005); Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003).  We overrule Appellant’s fifth issue.

4.   Extraneous-Offense Evidence. In Appellant’s first issue, he contends that the trial court erred in the penalty phase in overruling Appellant’s objections to evidence of Appellant’s extraneous offenses, and, having so erred, erred in denying a motion for continuance.  Appellant complains of evidence of his convictions and of testimony concerning his unadjudicated bad acts, namely that he distributed cocaine and promoted prostitution.  Appellant filed his request for notice on January 8, 2004.  On Wednesday, January 28, the State gave Appellant notice of intent to offer evidence of the convictions and disclosed the search warrant, which included confidential informants’ statements that Appellant distributed cocaine and promoted prostitution over at least one month.  The next day, the State’s unadjudicated-act witness became available to testify, and the State gave supplemental notice concerning the unadjudicated acts concerning which she was expected to testify.  Trial began on Tuesday, February 3; the parties selected a jury on that date.  The evidence in the guilt-or-innocence phase of trial opened on February 4.  On February 5, Appellant cross-examined the State’s unadjudicated-act witness.  Later that day, the penalty phase began and the trial court admitted the unadjudicated-act evidence of which Appellant complains.

4.   a.    Convictions.  First, Appellant complains of evidence of his convictions.  Appellant argues that he was not able to get copies of the judgments of those convictions until the second day after he received notice from the State.  Appellant had eight days’ notice, including six business days.  The trial court did not abuse its discretion in overruling Appellant’s objection to evidence of Appellant’s convictions.  See Prible, 2005 Tex. Crim. App. LEXIS 110, at *17; Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet. ref’d) (timing of defendant’s request).

4.   b.   Unadjudicated Acts.  Next, Appellant complains of evidence of his unadjudicated conduct.  Appellant argues that he was unable to review the witness statements for personal reasons. Appellant had seven days’ notice, including five business days.  The trial court did not abuse its discretion in overruling Appellant’s objection to evidence of Appellant’s bad acts.  See Prible, 2005 Tex. Crim. App. LEXIS 110, at *17; Ellison, 86 S.W.3d at 227; Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App. 2001) (witness statements); Cate v. State, 124 S.W.3d 922, 930 (Tex. App.—Amarillo 2004, pet. ref’d) (notice providing reasonable range of dates generally sufficient); Splawn v. State, 949 S.W.2d 867, 870 (Tex. App.—Dallas 1997, no pet.) (same); Scott, 57 S.W.3d at 480 (no surprise where defendant cross-examines extraneous-offense witness); Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d).

4.   c.    Motion for Continuance.  Next, Appellant complains of the trial court’s overruling of Appellant’s motion for continuance that Appellant made for the purpose of securing the presence of a witness to impeach the State’s unadjudicated-act witness.  Appellant presents nothing for review, where his motion for continuance is not in the statutory form, and Appellant did not preserve the issue by a motion for new trial.  See Tex. Code Crim. Proc. Ann. art. 29.06(6) (Vernon 1989); Tex. R. App. P. 33.1(a);  Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App. [Panel Op.] 1981).

      We overrule Appellant’s first issue. 

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurring with note)*

Affirmed

Memorandum opinion delivered and filed July 6, 2005

Do not publish

[CRPM]

  *  “(Justice Vance concurs.  The perfunctory manner in which this opinion disposes of most of the issues does not assist the litigants, the higher courts, the Bench and Bar, or the public.  I believe we should provide more of the facts and our analysis in memorandum opinions. Thus, I cannot join this opinion.)”