

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Tommy
Lewis Jackson
Appellant
Vs.      
            No. 11-01-00266-CR
--  Appeal from Dallas
County
State of Texas
Appellee
 
The jury
convicted appellant of unlawful delivery of cocaine.  The trial court assessed his punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term
of 15 years.  We affirm.
Appellant
attacks the legal sufficiency of the evidence supporting his conviction in his
first appellate issue.   In reviewing the
legal sufficiency of the evidence, we review the evidence in the light most
favorable to the prosecution.  Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427
(Tex.Cr.App.1991).  The inquiry is
whether any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. 
Turner v. State, supra at 427. 
The jury, as the fact finder, was the sole judge of the credibility of
the witnesses and the weight to be given their testimony and could choose to
believe or disbelieve all or any part of any witness=s
testimony.  TEX. CODE CRIM. PRO. ANN.
arts. 36.13 & 38.04 (Vernon 1979 & 1981); Sharp v. State, 707 S.W.2d
611, 614 (Tex.Cr.App.1986), cert. den=d, 488 U.S. 872
(1988).




The indictment charged appellant with delivery of cocaine to AL. Standige@ in an amount of
4 grams or more but less than 200 grams. 
Detective Leonard Standige, an undercover narcotics detective of the
Dallas Police Department, testified that he contacted appellant for the purpose
of purchasing cocaine from him. 
Detective Standige had previously met with appellant on several
occasions prior to the transaction in question.  Detective Standige made an agreement to purchase one-half ounce
(14.4 grams) of crack cocaine
from appellant for $450.   After meeting
appellant in the parking lot of a business, Detective Standige followed
appellant to a suspected drug house and waited inside his vehicle.  Appellant retrieved the $450 from Detective
Standige and then walked to the door of the house.  Appellant first brought approximately 4 grams of cocaine to
Detective Standige.  Detective Standige
told appellant that the amount that he brought was insufficient given the
amount which he had purchased.  
Appellant returned to the house and then brought an additional amount of
cocaine to Detective Standige.  
Detective Standige estimated the additional amount to be approximately
one and one-half grams.  Detective
Standige advised appellant that he had delivered enough cocaine at that
point.  The State=s chemist testified that the total amount of
cocaine which appellant delivered to Detective Standige constituted 5.3
grams.   The transaction ended by
Detective Standige giving appellant a $20 tip for his assistance.  Appellant called Detective Standige
approximately one hour later to see if Detective Standige was satisfied with
the amount that he received.
Appellant
argues that the evidence did not establish that he delivered more than four
grams of cocaine  to Detective
Standige.  Instead, he contends that the
evidence establishes that he made two deliveries of less than four grams
because he made two trips in making the deliveries to the detective.  Appellant is essentially arguing that he
should have been tried for two charges of second degree delivery of less than
four grams instead of a single count of first degree delivery of more than four
grams.  See TEX. HEALTH & SAFETY
CODE ANN. ' 481.112(c) & (d) (Vernon Pamph. Supp.
2002).  




The
controlling issue is whether appellant=s conduct constituted more than one offense prohibited by the
Controlled Substances Act.  See Iglehart
v. State, 837 S.W.2d 122, 127 (Tex.Cr.App.1992); Ex parte Hill, 48 S.W.3d 283,
287 (Tex.App. - Austin 2001, pet=n ref=d). 
The unit of prosecution is determined by the statutes defining the
offense; what constitutes an Aoffense@ is a matter of state law.  Iglehart v. State, supra at 127;  Ex parte Hill, supra at 287.  The Controlled Substances Act provides that
a person commits an offense if the person knowingly delivers a controlled
substance listed in Penalty Group 1, and the Act provides a specified penalty
based on Athe amount of the controlled substance to
which the offense applies.@  TEX. HEALTH & SAFETY CODE ANN.
' 481.112(a) thru (f) (Vernon Pamph. Supp.
2002).  Cocaine is listed in Penalty
Group 1.  TEX. HEALTH & SAFETY CODE
ANN. ' 481.102(3)(D) (Vernon Pamph. Supp.
2002).  The evidence in this case
supports appellant=s
conviction for a single offense of delivery of an amount of four grams or
more.  While appellant may have actually
made two trips to deliver the cocaine purchased by the detective, the
deliveries were made within a matter of minutes to fulfill a single purchase to
a single transferee.   Appellant=s first appellate issue is overruled.
Appellant
argues in his second appellate issue that the trial court failed to provide him
with sufficient time to review the charge of the court to the jury prior to
final arguments as required by TEX. CODE CRIM. PRO. ANN. art. 36.14 (Vernon
Supp. 2002).  The reporter=s record reveals that the charge of the court
was read to the jury immediately after the State and appellant closed.[1]  The record does not specifically establish
that an opportunity was provided to appellant to review the charge.[2]  However, the trial court specifically asked
both sides if they were ready to argue the case to the jury, to which appellant=s counsel replied in the affirmative.  As a prerequisite to presenting a complaint
for appellate review, the record must show that the complaint was made by a
timely request, objection, or motion. 
TEX.R.APP.P. 33.1(a)(1). 
Appellant made no protest to the trial court that he did not have
sufficient time to review the court=s charge; therefore, this contention was not preserved for appellate
review.  Appellant=s second appellate issue is overruled. 
The
judgment of the trial court is affirmed.
 
TERRY McCALL
JUSTICE
 
July 3, 2002
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.




     [1]Appellant rested immediately after the State rested.  


     [2]The record shows that testimony concluded at 12:19 p.m.
on the day of trial, at which time a lunch recess was taken.  The proceedings resumed at 2:01 p.m., at
which time both sides rested and closed. 
The charge was then read to the jury. 



