                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-172-CR


STEVE R. KING                                                   APPELLANT

                                             V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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     Appellant Steve R. King appeals from his conviction for delivery of a

controlled substance. We affirm.

                                    Background

     Fort Worth Police Officer Tracy Crowe testified that on July 19, 2005,

she was working undercover with Detective Roy Hudson in an area of town

notorious for drug activity. She said that after unsuccessfully attempting to


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         … See T EX. R. A PP. P. 47.4.
buy drugs at a suspected crack house, she and Detective Hudson, with

Detective Hudson at the wheel, were driving to another location when

Appellant yelled and waived to them.

      Detective Hudson made a u-turn and drove toward Appellant, who was

walking away from a man sitting on a chair next to a Dumpster. Appellant ran

up to the vehicle and spoke to Detective Hudson. Officer Crowe testified that

Appellant asked, “[W]hat are you looking for?” and that Detective Hudson said

they were looking for “twenty hard,” which is street slang for $20 worth of

crack cocaine. Officer Crowe said that Appellant said “okay” and stuck his

hand out and that Detective Hudson gave him a $20 bill.

      Officer Crowe testified that Appellant ran back to the man sitting by the

Dumpster—later identified as Kenneth Wilson—and handed him the $20 bill and

that Wilson handed something to Appellant. Appellant ran back to the car and

dropped a rock of crack cocaine into Detective Hudson’s hand.          Officers

Hudson and Crowe then drove away and radioed an arrest team waiting nearby

to move in. Officer Crowe said that the arrest team arrested Appellant and

Wilson, found on Wilson the $20 that Detective Hudson had given Appellant,

and found more crack cocaine hidden on the Dumpster during a search incident

to the arrests.




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      Detective Hudson also testified. His testimony was essentially the same

as Officer Crowe’s.

      Officer Jeff Lucio testified that he was on the arrest team on the day in

question. He said that when the arrest team received the “bust” signal from

Officer Crowe, he and the other members of the arrest team immediately

moved in and arrested the only two people in the area, Appellant and Wilson.

In a search incident to the arrests, the arrest team found on Wilson the $20 bill

Detective Hudson had given to Appellant, which had been photocopied earlier

in the day to aid in later identification. Officer Lucio explained that drug dealers

often conceal their stash of drugs somewhere other than on their persons in the

hope that police will not discover the stash if they arrest the dealer, so his team

always searches the immediate area when making a drug bust. A search of the

area immediately around Wilson found a baggie containing a substance later

identified as 1.19 grams of crack cocaine concealed on the Dumpster in one of

the sleeves used by the lift arms of a garbage truck to lift and empty the

Dumpster. The baggie containing the 1.19 grams of cocaine was admitted as

State’s exhibit 2 over Appellant’s objections, and its admission forms the basis

of his second point on appeal.

      Dr. Yin Zhang, a forensic scientist with the Fort Worth crime lab, testified

that the substance Appellant delivered to Detective Hudson was .20 grams of

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crack cocaine and that the substance found on the Dumpster was 1.19 grams

of crack cocaine.

      The defense called Kenneth Wilson.      W ilson testified that two police

officers driving a Bronco approached him and other people standing on the

street and asked if they had “20 for hard.” Wilson said that the female officer

was driving the vehicle and the male officer was riding in the passenger seat,

contrary to Officer Crowe’s and Detective Hudson’s testimony. Wilson testified

that Appellant spoke to the officers and then walked over to where Wilson was

seated next to the Dumpster. Wilson stated that all of the drugs hidden on the

Dumpster were his. According to Wilson, Appellant handed him a $20 bill,

retrieved something from the Dumpster, and gave it to the officers. Wilson said

that he did not give drugs to Appellant and that he did not know if the

substance Appellant gave to the officers was really drugs.           On cross-

examination, Wilson said that Appellant did not need his permission to access

the stash in the Dumpster. He also said that Appellant was working for him

that day.

      The jury convicted Appellant of delivery of a controlled substance of less

than one gram.      Punishment was tried to the bench.      The State offered

evidence of two prior felony convictions. Appellant also testified. He said that

he was working for himself, not Wilson, on the day in question, and he

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admitted that he gave the officers drugs for money and that he was a drug

dealer. The trial court assessed punishment at twenty years’ confinement.

                               Factual Sufficiency

      In his first point, Appellant challenges the factual sufficiency of the

evidence to support his conviction. When reviewing the factual sufficiency of

the evidence to support a conviction, we view all the evidence in a neutral light,

favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.

App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the fact-finder’s

determination is manifestly unjust.    W atson, 204 S.W.3d at 414–15, 417;

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under

the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      A person commits the offense of delivery of a controlled substance if the

person knowingly delivers a controlled substance. T EX. H EALTH & S AFETY C ODE

A NN. § 481.112(a) (Vernon 2003).

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      Appellant argues that the conflict between the testimony of Officer

Crowe and Detective Hudson on the one hand and Kenneth Wilson on the other

renders the evidence factually insufficient, apparently because Wilson’s

testimony suggests that whatever Appellant gave to the officers was not

cocaine. Wilson testified that his stash of drugs was in the Dumpster, that

Appellant did not need his permission to access the stash, that Appellant

retrieved something from the Dumpster and gave it to the officers, and that

Wilson did not know if the substance Appellant gave to the officers was really

drugs. Officer Crowe and Detective Hudson testified that Appellant delivered

to them a substance that appeared to be crack cocaine, and Dr. Zhang testified

that the substance was .20 grams of crack cocaine. To the extent that there

is a conflict in the testimony as to whether the substance was cocaine, this

conflict was a question for the jury to resolve. See Watson, 204 S.W.3d at

417. The jury resolved it against Appellant. We cannot say that the evidence

supporting the verdict was so weak that the jury’s determination was clearly

wrong and manifestly unjust or that conflicting evidence so greatly outweighs

the evidence supporting the conviction that the jury’s determination was

manifestly unjust; thus, the evidence is factually sufficient to support the jury’s

guilty verdict. See id. at 414–15, 417. We overrule Appellant’s first point.




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                   Admission of Drugs Found on Dumpster

      In his second point, Appellant argues that the trial court erred by

admitting into evidence State’s exhibit 2—the drug stash police found hidden

on the Dumpster—over his relevancy and rule 403 objections. See T EX. R. E VID.

403. The State replies that Appellant’s objections were untimely because he

did not object to earlier testimony about the stash’s discovery.

      A party must object to evidence as soon as the basis for the objection

becomes apparent. T EX. R. E VID. 103(a)(1); Lagrone v. State, 942 S.W.2d 602,

618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997). When a party

objects to the admission of physical drug evidence after a police officer has

already testified about finding the drugs without objection, nothing is presented

for review. Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980)

(“[A]ppellant argues error was committed by the introduction of LSD tablets and

marihuana discovered in connection with his oral confession. Assuming there

was some objection to this evidence when offered, there was no objection to

officer Frazier’s testimony about finding the narcotics. An objection must be

urged at the earliest opportunity. Nothing is presented for review.” (Citations

omitted)).

      Before the State offered its exhibit 2, Officers Crowe and Lucio both

testified without objection that police found a stash of crack cocaine when they

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searched the Dumpster. Because Appellant failed to urge his objection at the

earliest opportunity, i.e., when the officers testified about finding the drugs, he

waived his subsequent objection to the admission of the drugs themselves, and

nothing is presented for our review. See id. We overrule Appellant’s second

point.

                                    Conclusion

         Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.




                                             ANNE GARDNER
                                             JUSTICE

PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 26, 2008




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