Denito Norman v. State ( 2012 )

Opinion issued July 12, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00364-CR
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DENITO NORMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1274558
MEMORANDUM OPINION
This is an appeal from a conviction for possession with intent to deliver at
least 400 grams of cocaine. Appellant Denito Norman challenges the sufficiency of
the evidence to support his conviction. We affirm.
BACKGROUND
Appellant was arrested after a police search led to him being discovered
hiding under a table on an apartment patio, along with codefendant Emmanuel
Mayweather. A bag containing guns and cocaine was located “between them,”
leading to their both being charged with possession of its contents. At trial, the
State relied primarily on the testimony of a cabdriver, Syed Mohiuddin, and the
police officers involved in the search for, and arrest of, appellant and Mayweather,
to link appellant to the contents of the bag.
A. Trial Testimony
Mohiuddin testified that about 9:00 or 9:30 on the evening August 16, 2010,
he was dispatched to pick up passengers at an Economy Lodge Motel. He waited a
while, and eventually Mayweather and appellant came out and got into his cab. He
noticed that Mayweather was carrying a “laptop bag or something” like an “office
bag.” When Mohiuddin asked to which address they needed a ride, Mayweather
responded, “[W]e don’t know yet. We will tell you in a minute.” After
Mayweather made a couple of phone calls, he instructed Mohiuddin to take I-45
South. Mayweather then told him to exit College Avenue, u-turn, and pull into the
parking lot of a tattoo parlor.
At the tattoo parlor, both appellant and Mayweather got out of the cab and
one of them paid the fare. Appellant then “jumped back into the cab, and he said,
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wait, don’t leave. We need a ride back to the hotel.” There was a red Lincoln
Navigator parked facing the tattoo parlor. Mayweather, who was still carrying the
black bag, went over to talk to someone in the Navigator and, about a minute later,
a Toyota Corolla pulled up and parked beside Mohiuddin’s cab. Mohiuddin then
moved his cab from its position facing the building to a position facing the exit.
Mohiuddin got out of his cab to smoke a cigarette, and he could see Mayweather
talking to a man in the Navigator. Mohiuddin testified that they appeared to be
“making some kind of deal.” He saw Mayweather use his nail to taste something
that looked like a powder. After Mohiuddin got back in his car—where appellant
was still waiting—Mayweather came running back to the cab saying, “[L]et’s go.
Let’s go.” Mohiuddin did not see if Mayweather had the black bag when he
returned to the cab.
As Mohiuddin started to drive out of the parking lot, the Navigator and
Corolla gave chase and then boxed him in. He turned back towards the building
and saw that someone had gotten out of the Corolla with a gun. He jumped the
curb out of the parking lot and ran a red light in his attempt to get away. Someone
started shooting at the cab. Mohiuddin got onto I-45 South, with both the
Navigator and Corolla chasing and firing at him. He was driving about one
hundred miles per hour when his back tire was shot out. Realizing that he would
not make it far on three tires and an almost-empty gas tank, Mohiuddin slammed
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on his brakes, u-turned, and started driving the wrong direction down the freeway.
Mayweather, who had a gun and had been trying to fire back at their pursuers,
ordered Mohiuddin off the freeway. Mohiuddin testified that during this vehicle
chase down the freeway, appellant was hiding in the back of the cab.
After Mohiuddin got off the freeway, he stopped and ordered Mayweather
and appellant out of the cab in front of an apartment complex. Mohiuddin drove to
a nearby restaurant to call police. The Corolla pulled in after him and the driver
asked where he had dropped off Mayweather and appellant. The Corolla then took
off in pursuit of Mayweather and appellant, and Mohiuddin went inside to request
assistance from the manager.
Sandra Coutee, a resident at The Lakes apartments, testified that at about
11:30 p.m. on August 16, 2010, she heard loud banging on the door next to hers.
She looked through the peephole on her door to see what was going on, as she
knew that that adjacent apartment was unoccupied. She saw Mayweather
knocking on the empty apartment’s door, and he asked her, through her door, for
the name of the apartment complex. She refused to answer and told him she was
calling the police, which she immediately did. She heard Mayweather call
downstairs to someone else that she was calling the police.
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Coutree saw Mayweather had a black bag with him that he set down while
he was knocking on the apartment door. Mayweather then left, and Coutee stayed
in her apartment until the police arrived.
Following up on multiple reports about the shootings on the freeway, as well
as calls from Mohiuddin and Coutee, the police conducted a ground and helicopter
search for Mayweather and appellant. Using an infrared camera, a police
helicopter directed ground units to where Mayweather and appellant were hiding
on an apartment patio under a table.
Sergeant James Bosworth with the Houston Police Department testified to
recovering a black bag when Mayweather and appellant were arrested. It
contained a Tech 9 handgun, a .40 caliber handgun, and a kilo of cocaine. When
asked about the position of appellant and Mayweather under the patio table they
were hiding under in relation to the bag, he responded that, “[t]o the best of [his]
memory, they were laying side by side, kind of front to back, and the bag was right
in front of them on the ground.” He could not recall exactly where the bag was,
and could not see if “anyone had their hand on the bag or if anyone was trying to
hide the bag.”
Officer Kurt Rogers similarly testified that, when police first discovered
them, appellant and Mayweather were “on their sides or their backs, . . . laying
down” under the patio table with the “ black bag right at their feet.” He further
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explained, “their bodies were under the table, and their legs were kind of out
underneath; and the bag was by their legs, by their knees, maybe by their calves, I
don’t know, but right toward the bottom part of their legs.” On the police report,
Officer Rogers indicated that the bag was found “between” Mayweather and
appellant, and he testified at trial that he could not recall who was closest to the
bag. He did not see anyone’s hand on the bag.
B. The Jury’s Verdict and Trial Court’s Judgment
The jury found appellant and Mayweather guilty of possession with intent to
deliver at least 400 grams of cocaine. The jury also found a weapons enhancement
to be true as to both appellant and Mayweather. The trial court assessed
punishment at fifteen years’ confinement and a $5,000.00 fine. Appellant timely
appealed here.
ISSUES ON APPEAL
In three points of error, appellant argues that his conviction should be
reversed because:
1. “The evidence was insufficient to support the Jury’s verdict finding that the
Appellant acted either as a sole actor or as a party to the charged offense of
possession of cocaine weighing more than 400 grams, with the intent to
deliver”;
2. “The evidence was insufficient to support the Jury’s verdict that Appellant
was guilty of the offense of possession of at least 400 grams of cocaine ‘with
intent to deliver’ the cocaine”;
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3. “The Trial Court abused its discretion in denying Appellant’s ‘Motion for
Instructed Verdict’ where the evidence was insufficient to support a
conviction.”
STANDARD OF REVIEW
“[E]vidence is insufficient to support a conviction if considering all record
evidence in the light most favorable to the verdict, a factfinder could not have
rationally found that each essential element of the charged offense was proven
beyond a reasonable doubt.” Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979)); Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d). Evidence is insufficient under this standard if
(1) the record contains no evidence probative of an element of the offense; (2) the
record contains a mere “modicum” of evidence probative of an element of the
offense; (3) the evidence conclusively establishes a reasonable doubt; or (4) the
acts alleged do not constitute the criminal offense charged. Gonzalez, 337 S.W.3d
at 479; see Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11.
If an appellate court finds the evidence insufficient under this standard, it must
reverse the judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.
An appellate court “determine[s] whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d
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772, 778 (Tex. Crim. App. 2007). When the record supports conflicting
inferences, an appellate court presumes that the factfinder resolved the conflicts in
favor of the verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at
326, 99 S. Ct. at 2793). In viewing the record, a court treats direct and
circumstantial evidence equally: circumstantial evidence can be as probative as
direct evidence, and “circumstantial evidence alone can be sufficient to establish
guilt.” Clayton, 235 S.W.3d at 778 (quoting Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007)).
SUFFICIENCY OF POSSESSION EVIDENCE
A. Applicable Law
Possession
To prove unlawful possession of a controlled substance, “the State must
prove that (1) the accused exercised control, management, or care over the
substance; and (2) the accused knew the matter possessed was contraband.” Evans
v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX. HEALTH &
SAFETY CODE ANN. § 481.002(38) (Vernon 2010) (“‘Possession’ means actual
care, custody, control, or management.”).
Possession need not be exclusive. Roberson v. State, 80 S.W.3d 730, 735
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When the accused is not in
exclusive possession of the place where the controlled substance is found, then
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additional, independent facts and circumstances must affirmatively link the
accused to the substance in such a way that it can reasonably be concluded that the
accused possessed the substance and had knowledge of it. Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d). In other words, whether direct or
circumstantial, the evidence “must establish, to the requisite level of confidence,
that the accused’s connection with the [contraband] was more than just fortuitous.”
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
Links that may circumstantially establish the sufficiency of the evidence to
prove knowing possession include (1) the defendant’s presence when a search is
conducted; (2) whether the substance was in plain view; (3) the defendant’s
proximity to and the accessibility of the substance; (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 substance was found; (12) whether the place where the substance was
found was enclosed; (13) whether the defendant was found with a large amount of
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cash; and (14) whether the conduct of the defendant indicated a consciousness of
guilt. Evans, 202 S.W.3d at 162 n.12.
Not all of these factors must be proved; rather, it is the cumulative logical
force the factors have in proving possession that we must consider. See James v.
State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
Additionally, absence of some of the factors is not evidence of innocence that must
be weighed against the factors that are present. Id. Rather, they are used to assess
the sufficiency of the evidence linking the defendant to knowing possession of
contraband. See, e.g., Roberson, 80 S.W.3d at 735–36; Allen v. State, 249 S.W.3d
680, 692 n.13 (Tex. App.—Austin 2008, no pet.) (explaining that presence or
absence of factors “aid appellate courts in determining the legal sufficiency of
evidence in knowing possession of contraband cases”).
Law of Parties
Under the law of parties, a person is criminally responsible for the conduct
of another if, “acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense.” TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 2011). “The
evidence must show that, at the time of the offense, the parties were acting
together, each contributing some part toward the execution of their common
purpose.” Duvall v State, 189 S.W.3d 828, 831 (Tex. App.—Houston [1st Dist.]
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2006, pet. ref’d). “In determining whether a defendant participated in an offense
as a party, the factfinder may examine the events occurring before, during, and
after the commission of the offense and may rely on actions of the defendant that
show an understanding and common design to commit the offense.” McKinney v.
State, 177 S.W.3d 186, 197 (Tex. App.—Houston [1st Dist.] 2005), aff’d, 207
S.W.3d 366 (Tex. Crim. App. 2006).
B. Parties’ arguments
Appellant argues that there is no evidence that he possessed the cocaine, or
that he was a party to that offense. He points to the trial testimony about
Mayweather being the sole person that (1) carried the black bag containing the
contraband, (2) gave Mohiuddin directions to the tattoo parlor, (3) interacted with
the person in the Navigator and appeared to engage in a “deal,” and (4) attempted
to fire a gun at the Corolla that was chasing them down. Appellant contrasts this
testimony about Mayweather’s activities with the testimony demonstrating that—
while he did travel in the cab with Mayweather—he (1) only sat in the cab to wait
for Mayweather without interacting with anyone in the Navigator or the Corolla,
and (2) did nothing to assist Mayweather when the cab was chased down I-45
while Mayweather returned their pursuers’ gunfire. In light of these facts,
according to appellant, the evidence falls short of demonstrating that he was in
control or possession of the drugs as the sole actor.
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He similarly argues that there is no evidence that he was criminally
responsible for the conduct of Mayweather under the law of parties. Specifically,
he contends that there is “no evidence that Appellant had the intent to commit the
charged offense and in furtherance of that intent, spoke any words of
encouragement to Mr. Mayweather or engaged in conduct that could be construed
as encouragement to commit the charged offense.” He points to the lack of
evidence as to the subject of any conversation he had with Mayweather in the cab,
as well as the lack of evidence that he directed Mayweather in the drug transaction,
or in deciding when or how to flee. Finally, he asserts that there is no evidence
that he actually “aided or attempted to aid Mayweather in the commission of the
charged offense.”
The State responds that appellant’s proximity and access to the black bag of
drugs, as well as his attempt to flee and hide with Mayweather are affirmative links
that show appellant’s possession and control of the drugs as a sole actor. The State
also points to the amount of cocaine found in appellant’s possession, and
“appellant’s lack of surprise at the discovery of contraband and weapons” as
evidence supporting the jury’s finding that appellant possessed the cocaine.
Alternatively, the State argues that there is evidence that appellant was a
party to the offense. While it acknowledges that ‘[m]ere presence of the appellant
at the scene is not enough,” it argues that presence is “a circumstance that,
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combined with other facts, may show the appellant’s participation.” Here,
appellant held the cab for Mayweather and “behaved like a look-out.” According
to the State, one of the pictures taken in the cab show appellant with a gun in hand
as they are fleeing the scene of the drug deal.1 Finally, the State relies heavily on
the fact that appellant fled with Mayweather, and was “found with the cocaine and
two handguns at his feet.”
C. Analysis
The jury was instructed on the definition of possession and on the law of the
parties. Thus, sufficient evidence under either theory will support the jury’s
finding of guilt. Because, for the reasons explained below, we conclude that there
is sufficient evidence that appellant was a party to Mayweather’s possession, we
need not reach whether there are adequate links to demonstrate appellant’s
possession as a sole actor.
While appellant relies heavily on the absence of direct evidence of an
agreement with Mayweather to participate together in an offense, it has long been
1
An automatic camera mounted in Mohiuddin’s cab took pictures of the inside of
the vehicle at various times during the events testified to at trial. It is one of those
pictures, which were admitted at trial, that the State claims shows appellant with a
gun in the back seat. Appellant disagrees with that characterization of the picture.
We have examined the original exhibit and note that it is so dark as to render the
subjects of the picture virtually unrecognizable, and no gun is visible. While the
State argues that the jury saw a clearer copy of that picture in a power point
demonstrative, it concedes that power point was not entered into evidence, so we
cannot consider that fact here.
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recognized that such evidence will rarely be available. Rather, participation in a
criminal offense is often inferred from the circumstances. Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987); Phelps v. State, 730 S.W.2d 198, 200
(Tex. App.—San Antonio 1987, no pet.). Because agreement of the parties to act
together in common design seldom can be proved by direct evidence, the jury can
rely on the actions and words of the parties demonstrating an understanding and
common design to do a certain act. Mayfield v. State, 716 S.W.2d 509, 514 (Tex.
Crim. App. 1986); Ex parte Prior, 540 S.W.2d 723, 727–28 (Tex. Crim. App.
1976).
Appellant’s continued presence and accompanying Mayweather through the
events of the evening of August 16, 2010 is some evidence, when taken in
conjunction with all the other circumstances, supporting a finding that he
participated in Mayweather’s offense. See Harris v. State, 645 S.W.2d 447, 457
(Tex. Crim. App. 1983) (“While mere presence of an accused at the scene of an
offense is not sufficient in itself to support a conviction, V.T.C.A. Penal Code, §
7.02(a)(2), it is a circumstance tending to prove guilt, which, combined with other
facts, may suffice to show the accused was a participant.”); Machado v. State, 494
S.W.2d 859, 863 (Tex. Crim. App. 1973) (appellant’s and codefendant’s “joint
presence . . . , both before and after the shooting, is evidence to be considered with
all other facts and circumstances”).
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There is evidence of appellant’s actions before, during, and after the drug
transaction that support the inference that appellant and Mayweather shared an
understanding and common plan. Harris, 645 S.W.2d at 457–58 (“In determining
whether a person was a participant in an offense the courts may look to events
before, during, and after commission of the offense, including actions which show
an understanding and common design to do a certain act.”) (citing Alexander v.
State, 607 S.W.2d 551, 553 (Tex. Crim. App.1980)). Before the drug deal at the
tattoo parlor, appellant came out of the hotel with Mayweather and travelled with
him in the cab while Mayweather was carrying a bag. On the way to the tattoo
parlor, appellant was in the backseat of the cab with Mayweather, well within
earshot of Mayweather’s telephone calls arranging a meeting place for the drug
transaction.
More importantly, appellant arranged to hold the cab for Mayweather and
appeared to act as lookout during the transaction. Indeed, it was appellant’s
holding the cab that provided Mayweather a get-away vehicle, as Mohiuddin
testified that as soon as he realized from viewing Mayweather’s actions that
“something is not right” that was escalating into an “emergency” situation, the only
reason he did not leave the scene was that appellant was sitting in his cab. These
actions could reasonably be viewed as more than being present; appellant was
actively “aid[ing], or attempt[ing] to aid the other person to commit the offense.”
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TEX. PEN. CODE ANN. § 7.02(a)(2); see also Cumpian v. State, 812 S.W.2d 88, 90
(Tex. App.—San Antonio 1991, no writ) (evidence sufficient to support finding
that appellant was party to burglary despite him not being found in possession of
any money taken during burglary because there was evidence that appellant was at
scene and acted as look-out person).
After the shootout with pursuers on the freeway, appellant exited the cab and
fled with Mayweather to a nearby apartment complex. Appellant and Mayweather
then hid together from the police huddled under a table with the bag of drugs and
firearms. While flight alone will not support a guilty verdict, it is a circumstance
from which an inference of guilt may be drawn. E.g., Holloway v. State, 525
S.W.2d 165, 167 (Tex. Crim. App. 1975); Santos v. State, 961 S.W.2d 304. 305
(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“Unexplained flight has long
been deemed indicative of consciousness of guilt.”); Burks v. State, 876 S.W.2d
877, 903 (Tex. Crim. App. 1994) (“Evidence of flight is admissible as a
circumstance from which an inference of guilt may be drawn.”).
Because we conclude that these circumstances, taken together, are legally
sufficient to support the jury’s finding that appellant possessed the cocaine at issue
under the law of parties, we overrule appellant’s first point of error.
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EVIDENCE OF “INTENT TO DELIVER” EVIDENCE
A. Applicable Law
Intent to deliver can be proven by circumstantial evidence. E.g., Rhodes v.
State, 913 S.W.2d 242, 251 (Tex. App.—Fort Worth 1995), aff'd, 945 S.W.2d 115
(Tex. Crim. App. 1997). “An oral expression of intent is not required; intent can
be inferred from the acts, words, and conduct of the accused.” Kibble, 340 S.W.3d
at 18 (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)).
“Some factors to consider in determining intent include (1) the nature of the
location where the defendant was arrested, (2) the quantity of drugs the defendant
possessed, (3) the manner of packaging of the drugs, (4) the presence or absence of
drug paraphernalia, (5) whether the defendant possessed a large amount of cash in
addition to the drugs, and (6) the defendant’s status as a drug user.” Id. at 18–19
(citing Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.]
1994, pet. ref’d)). These are factors for the Court to consider when reviewing the
sufficiency of the evidence, but need not all be present. See Branch v. State, 599
S.W.2d 324, 325–26 (Tex. Crim. App. 1979). Expert testimony may be introduced
to prove intent to deliver. See Rhodes, 913 S.W.2d at 251.
B. Parties’ Arguments
Appellant argues that there were no acts, words, conduct, or circumstances
“from which intent to deliver could be inferred or established beyond a reasonable
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doubt.” He acknowledges that Officer Rogers testified that, “based on [his]
training and experience” as a narcotics officer, a kilo of cocaine is not normally
bought for personal use; it is indicative of distribution. He urges us to discount
that testimony, however, because Officer Rogers was not designated as an expert.
Without that testimony, appellant contends, the State has no evidence of intent
other than the quantity of the cocaine. If the quantity itself was enough, appellant
asserts, then the legislature would not have different statutes that impose different
punishments for possession and possession with intent.
The State counters that “the sheer amount of cocaine, the lack of
paraphernalia, and the circumstances surrounding the appellant’s arrest” is ample
evidence from which the jury could rationally find beyond a reasonable doubt an
intent to deliver. It also argues that, given his experience as a narcotics officer,
Officer Rogers’s testimony is probative of intent to distribute.
C. Analysis
We agree with the State that the jury’s finding of “intent to distribute” is
sufficiently supported by evidence of (1) the quantity of cocaine, i.e., a kilo brick,
(2) testimony that a kilo of cocaine is worth about $20,000 - $25,000, (3) testimony
that a kilo of cocaine is generally for distribution rather than personal use, and (4)
the lack of any paraphernalia with the drugs. Our opinion in Garcia v. State is
directly on point. 218 S.W.3d 756 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
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The appellant in Garcia argued, as appellant does here, that there was no evidence
of his intent to distribute cocaine. Id. at 762. Given the similarity between the
evidence the jury heard in this case and the evidence we identified as sufficient in
Garcia, our analysis in Garcia applies with equal force here:
Deputy Coker, an experienced undercover narcotics officer in the
Harris County Sheriff’s Office . . . testified that the amount of cocaine
possessed by appellant, more than 500 grams in the form of a brick,
was more than people generally have for personal use and indicated
that the appellant had likely intended to sell the cocaine.
Additionally, no drug paraphernalia for the use of cocaine was found
in the vehicle or on appellant’s person. See Mack [v. State], 859
S.W.2d [526,] 529 [(Tex. App.—Houston [1st Dist.] 1993, no pet.)]
(finding that absence of paraphernalia for smoking or using cocaine
supports inference that accused intended to deliver, rather than
consume, contraband). Texas courts have upheld convictions for
intent to deliver with less evidence than that presented in the present
case. See Mack, 859 S.W.2d at 528–29 (8.9 grams of crack cocaine,
no drug paraphernalia, appellant arrested in known drug-dealing area,
and expert testimony); Branch v. State, 833 S.W.2d 242, 245 (Tex.
App.—Dallas 1992, pet. ref’d) (17 packets of cocaine weighing less
than 28 grams, $732 in cash, no drug paraphernalia or other signs of
drug use, and expert testimony). The evidence in this case satisfied
enough of the factors considered in establishing that the appellant had
the intent to deliver.
Id. at 764.
We note that appellant cites no authority for the proposition that Officer
Roger could not testify as to indicators of a defendant’s intent to distribute. Officer
Rogers established his experience and qualifications as a narcotics officer, and the
trial court admonished him to only answer questions if he personally knew the
answer from his training and experience.
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Because there is legally sufficient evidence of an intent to distribute, we
overrule appellant’s third point of error.
INSTRUCTED VERDICT
A. Applicable Law
“A complaint about the denial of an instructed verdict is reviewed as an
attack on the sufficiency of the evidence.” Sutton v. State, 35 S.W.3d 737, 739
(Tex. App.—Houston [1st Dist.] 2000, pet. dism’d) (citing Cook v. State, 858
S.W.2d 467, 470 (Tex. Crim. App. 1993); Youens v. State, 988 S.W.2d 404, 407
(Tex. App.—Houston [1st Dist.] 1999, no pet.)).
B. Parties’ Arguments
Appellant argues that the trial court erred in denying his motion for
instructed verdict because the evidence was insufficient that he committed the
charged offense. Appellant relies upon his arguments in his first two points of
error, and additionally argues that there was “insufficient evidence presented by
the State in support of its allegation that Appellant used or exhibited a deadly
weapon, namely a firearm, during the commission of the charged offense. He
notes that while Mohiuddin testified that “Mayweather exhibited a firearm in the
immediate flight from the offense by Mr. Mayweather,” Mohiuddin never testified
to seeing appellant with a firearm. Because, appellant asserts, there is no evidence
to prove that he was a party to any offense committed by Mayweather, “who, at all
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times, maintained possession of the black office-type bag that was recovered and
which contained the narcotics and two firearms, then the evidence is likewise
insufficient to support the Jury’s finding that Appellant used or exhibited a deadly
weapon during the commission of the charged offense or during immediate flight
therefrom.”
The State does not address these arguments, instead asserting that because “a
challenge to the trial court’s denial of the appellant’s motion for instructed verdict
is a challenge to the legal sufficiency of the evidence, this Court need not address
appellant’s third issue separately from his first.”
C. Analysis
We have addressed appellant’s arguments regarding the jury’s finding of
possession and intent to deliver with his first two points of error. For the same
reasons that we overruled those points of error, we hold that the trial court did not
err by denying his motion for instructed verdict on those issues. His argument as
to why the jury’s finding that he used or exhibited a firearm is not supported by
sufficient evidence is wholly dependent upon his argument that there is no
evidence that he was a party to Mayweather’s offenses—an argument that we
rejected in addressing his first point of error. The trial court did not err in denying
his motion for instructed verdict on the jury’s firearm finding because it is
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undisputed that Mayweather used or exhibited a firearm, and we have already held
that appellant was a party to that offense.
We overrule appellant’s third point of error.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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