                                   NO. 07-02-0045-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     AUGUST 2, 2002

                           ______________________________


                        GREGORY LYNN FRANKLIN, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 42,934-A; HONORABLE DAVID GLEASON, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Following a plea of not guilty, appellant Gregory Lynn Franklin was convicted by a

jury of delivery of a controlled substance and pursuant to a plea agreement on punishment,

a 25-year sentence was imposed. In presenting this appeal, counsel has filed an Anders1




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          Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
brief in support of a motion to withdraw. Based upon the rationale expressed herein, the

motion to withdraw is granted and the judgment is affirmed.


       In support of his motion to withdraw, counsel has certified that, in compliance with

Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he has

diligently reviewed the record and, in his opinion, the record reflects no meritorious ground

on which an appeal can be predicated. Thus, he concludes the appeal is frivolous and

without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978),

counsel has candidly discussed why, under the controlling authorities, there is no error in

the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant,

and informed appellant that, in counsel's view, the appeal is without merit. In addition,

counsel has demonstrated that he notified appellant of his right to review the record and

file a pro se brief. Appellant did not file a pro se brief and the State did not favor us with

a brief.


       On May 10, 2000, while working undercover, Agent Brett Harbert of the Panhandle

Regional Narcotics Task Force, arranged to meet with appellant to purchase

methamphetamine. After several phone calls, the two agreed to meet at Bristow Forklift

Shop and appellant told Harbert to bring $1,000. When Harbert arrived at the shop,

appellant was not there and per appellant’s instructions, he met with an employee named

Vicki Snelson. Harbert was wearing a wireless microphone and became concerned about

the battery power when appellant had not yet arrived. Harbert made an excuse to Snelson

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to leave to check on his microphone. While he was gone, appellant arrived at the shop

and placed the methamphetamine on the counter. Upon hearing someone arrive, Snelson

picked up the methamphetamine and concealed it in her bra. Harbert had returned and

placed $1,000 cash on the counter. Without speaking, appellant motioned to Harbert that

Snelson had the methamphetamine. She retrieved the narcotics from her undergarment

and gave it to Harbert. Appellant was arrested at a later date.


      Counsel presents two arguable points of error on appeal. By his first point, he

challenges the sufficiency of the evidence to support appellant’s conviction, and by point

two raises abuse of discretion by the trial court (1) in admitting an audio tape of the

transaction, and (2) in not granting a mistrial when Harbert testified that he identified

appellant from booking photographs. However, after a discussion of the evidence and the

legal authorities, counsel candidly concedes no reversible error is presented. We first

address the sufficiency of the evidence. When both the legal and factual sufficiency of the

evidence are challenged, we must first determine whether the evidence is legally sufficient

to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a

fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown

beyond a reasonable doubt that the defendant committed each element of the alleged

offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.

2002); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting a legal sufficiency

review, we must determine whether, after viewing the evidence in the light most favorable


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to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App.

1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.

2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the

verdict unless it is irrational or unsupported by more than a mere modicum of evidence.

Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. The Court of Criminal Appeals has

directed us to ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the fact finder’s determination, or the proof of guilt, although adequate if

taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King

v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12.

In conducting this analysis, we may disagree with the fact finder’s determination, even if

probative evidence supports the verdict, but must avoid substituting our judgment for that

of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).




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       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove.

Appellant was indicted for delivery of methamphetamine to Brett Harbert in an amount of

four grams or more but less than 200 grams.           Tex. Health & Safety Code Ann. §

481.112(a) & (d) (Vernon Supp. 2002). There are three ways to deliver a controlled

substance, to-wit: (1) actual transfer, (2) constructive transfer, and (3) an offer to sell. §

481.002(8). The State plead all three forms of delivery in the indictment and the jury was

charged with all three forms. Thus, proof of any form of delivery is sufficient to support

appellant’s conviction. See Moore v. State, 983 S.W.2d 15, 21 (Tex.App.–Houston [14th

Dist.] 1998, no pet.).


       Agent Harbert testified that he arranged a drug transaction with appellant to

purchase methamphetamine for $1,000. Snelson, a co-defendant, waived her Fifth

Amendment rights and after being admonished by the trial court, testified that she gave a

package of methamphetamine to Harbert that appellant had placed on the counter and that

she had hidden in her bra because they were at her place of employment. A forensic

chemist established that the substance purchased by Harbert from appellant was 27.5

grams of methamphetamine. We conclude that after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of delivery of a controlled substance beyond a reasonable doubt.




                                              5
      Having concluded that the evidence is legally sufficient to support the verdict, we

must now determine, after a neutral review of all the evidence, whether it is factually

sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province

of the fact finder to determine the credibility of the witnesses and the weight to be given

their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong

v. State, 958 S.W.2d 278, 284 (Tex.App.–Amarillo 1997, pet. denied).


       The State established that appellant sold Harbert methamphetamine for $1,000.

Photocopies of the cash were admitted into evidence. Additionally, an audio tape of the

transaction was played for the jury. Snelson corroborated Harbert’s testimony that she

gave him the methamphetamine that appellant had placed on the counter and that she had

hidden in her bra. She also confirmed that appellant collected the cash from the counter.


       The defense challenged the chain of custody of the methamphetamine. However,

the State established the proper procedure for booking the evidence and the chain of

custody from the time it was booked and sealed, mailed to a lab for testing, and returned

to Harbert, who rebooked it into the property room. The defense also attempted to show

that there was no evidence to establish that appellant gave the methamphetamine to

Snelson. However, Snelson testified that appellant told her he was meeting Harbert to

conduct a drug transaction and that after he placed the narcotics on the counter, she

concealed it in her bra because they were at her place of employment. A constructive

transfer occurs when a seller transfers a controlled substance, either belonging to him or

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under his control, by some other person, at the direction of the seller. Thomas v. State,

832 S.W.2d 47, 50 (Tex.Cr.App. 1992). The State plead constructive transfer in the

indictment; thus, evidence that appellant placed the methamphetamine on the counter and

that Snelson hid it when she heard someone arrive at the shop, and then gave it to Harbert

pursuant to appellant’s direction establishes delivery by appellant. After a neutral review

we agree with counsel’s conclusion that the evidence is sufficient to support appellant’s

conviction.


       By the second point presented in counsel’s Anders brief, he suggests abuse of

discretion as an arguable ground for two reasons. First, he raises the admission into

evidence over objection of the audio tape of the drug transaction and then argues possible

error in Harbert’s testimony that he identified appellant from booking photographs in

violation of a motion in limine. We first address the admission of the audio tape.


       Rule 901(a) of the Texas Rules of Evidence provides that authentication or

identification as a condition to admissibility is satisfied by evidence sufficient to support

a finding that the matter in question is what its proponent claims. Rule 901(b) provides

numerous methods of illustrating authentication or identification. Testimony by a witness

with knowledge that a matter is what it is claimed to be is sufficient to authenticate a tape

recording. Tex. R. Evid. 901(b)(1). Harbert testified that the tape offered into evidence

was the original recording of the drug transaction, that it was made by a competent

operator, that he listened to the tape and identified his voice and that of appellant’s and

                                             7
Snelson’s. Harbert’s testimony was sufficient to authenticate the audio tape of the drug

transaction played for the jury.      See Brooks v. State, 921 S.W.2d 875, 879-80

(Tex.App.–Houston [14th Dist.] 1996), aff’d, 957 S.W.2d 30 (Tex.Cr.App. 1997); Schneider

v. State, 951 S.W.2d 856, 863 (Tex.App.–Texarkana 1997, pet. ref’d). We agree with

counsel that the trial court did not abuse its discretion in admitting the audio tape.


       While testifying, Harbert was asked by the State how he proceeded to identify

appellant after the drug transaction occurred. Harbert responded, “I had previously looked

up Amarillo Police Department reports and booking photographs –.“ Defense counsel

objected on the ground that Harbert’s testimony was in violation of a motion in limine,

requested an instruction to disregard, and moved for mistral. The court sustained the

objection, granted the request for an instruction to disregard, but denied the motion for

mistrial. The jury was instructed to “disregard any comments from [Harbert] regarding the

existence of previous police reports concerning the individual on trial.”


       An accused may not be tried for a collateral crime or for being a criminal generally.

Coe v. State, 683 S.W.2d 431, 436 (Tex.Cr.App. 1984). A reference to an extraneous

offense is usually cured by an instruction to the jury to disregard “unless it appears the

evidence was so clearly calculated to inflame the minds of the jury or is of such damning

character as to suggest it would be impossible to remove the harmful impression from the

jury’s mind[s].” Kemp v. State, 846 S.W.2d 289, 308 (Tex.Cr.App. 1992), cert. denied, 508

U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). A trial court’s denial of a mistrial may

                                             8
be upheld if the instruction to disregard cured the erroneous admission of testimony by a

State’s witness regarding an extraneous offense. Id. The booking photographs referenced

by Harbert were not offered into evidence and his comment was neither calculated to

inflame the jury nor of such damning character as to suggest it would be impossible to

remove the harmful impression from the jury’s minds. Error, if any, was cured by the trial

court’s instruction to the jury to disregard Harbert’s comment. We agree with counsel that

the trial court did not abuse its discretion in denying appellant’s motion for mistrial.


       We have also made an independent examination of the entire record to determine

whether there are any other arguable grounds which might support this appeal. See

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no

nonfrivolous issues and agree with counsel that the appeal is without merit and is,

therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of

the trial court is affirmed.


                                                  Don H. Reavis
                                                    Justice
Do not publish.




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