                                  NO. 07-08-0029-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JUNE 23, 2009
                          ______________________________

                          GARY RAFEAL ALLEN, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

      FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

               NO. 1027513D; HONORABLE ELIZABETH BERRY, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Gary Rafeal Allen, appeals his conviction for the offense of possession

of a controlled substance, cocaine, of four grams or more but less than 200 grams with

intent to deliver,1 enhanced by one prior felony conviction.2 Appellant was sentenced to

20 years incarceration in the Institutional Division of the Texas Department of Criminal

Justice. We affirm.



      1
          See TEX . HEALTH & SAFETY CODE ANN . § 481.112(a) & (d) (Vernon 2003).
      2
          See TEX . PENAL CODE ANN . § 12.42(c)(1) (Vernon Supp. 2008).
                            Factual and Procedural Background


       On February 10, 2006, Officer Chavez of the Arlington Police Department was

transporting a prisoner to jail when he passed a car in the driveway to a bar parking lot.

From Chavez’s perspective, a male, later identified as appellant, and a female, later

identified at Carolyn Hill, were having an altercation and the male appeared to be trying to

either keep the female from leaving or pulling her into the car. Chavez felt that the

situation might be a domestic assault in progress. Chavez turned his patrol car around and

pulled into the parking lot to investigate.


       As Chavez approached the vehicle in the parking lot, he observed appellant

reaching through the passenger window. Chavez ordered appellant to step away from the

car. Appellant complied and raised his hands to show that he did not have a weapon.

Chavez asked appellant and Hill for some identification and, while the identification was

being produced, both appellant and Hill advised that there was nothing wrong and that the

two of them had just been having an argument. After obtaining identification from appellant

and Hill, Chavez returned to his vehicle to check for outstanding warrants.


       As Chavez was checking for warrants in his vehicle, Officer Worman arrived on the

scene. Worman testified that it is standard procedure to send a backup unit to any

suspected assaultive type police call. Worman was briefed by Chavez about what was

transpiring. Worman then started approaching appellant and Hill, who were both seated

in their vehicle, when he noticed appellant take a baggy out of the cargo pocket of his

shorts and hide it behind the seat. Worman immediately ordered appellant from the


                                              2
vehicle and asked Officer Rhodes, who had also just arrived on the scene, to take custody

of appellant while Worman retrieved the baggy from behind the driver’s seat. After

retrieving the baggy, Worman began talking to Hill when appellant made a statement

claiming that the cocaine was his and that Hill had nothing to do with it.


       Appellant was placed under arrest and, while being searched incident to the arrest,

a baggy of marijuana was found in one of his pockets. Additionally, $1,653 in cash was

found on appellant.


       Before trial, appellant filed a motion to suppress the evidence seized at the scene.

The trial court conducted a hearing on the motion to suppress and denied the same. Later,

the trial court filed findings of fact and conclusions of law regarding the seizure. After the

close of the evidentiary portion of the guilt or innocence phase of the trial, appellant

requested the trial court give a charge to the jury pursuant to article 38.23 of the Texas

Code of Criminal Procedure, which the trial court denied.3 The jury found appellant guilty

of possession of a controlled substance, cocaine, of four grams or more but less than 200

grams with the intent to deliver. The same jury subsequently sentenced appellant to 20

years incarceration in the Institutional Division of the Texas Department of Criminal Justice.


       Through three issues, appellant contends that: 1) the trial court abused its discretion

in overruling the motion to suppress the evidence seized, 2) the trial court abused its

discretion in denying appellant’s requested jury instruction pursuant to article 38.23 of the



       3
       See TEX . CRIM . PROC . CODE ANN . art. 38.23 (Vernon 2005). Further reference to
the Texas Code of Criminal Procedure will be by citation to “article ___” or “art. ___.”

                                              3
Texas Code of Criminal Procedure, and 3) the evidence was legally and factually

insufficient to prove possession of cocaine with intent to deliver.4 We disagree with

appellant’s contentions and will affirm the trial court’s judgment.


                                     Motion to Suppress


       Appellant’s first issue contends that the trial court abused its discretion by overruling

his motion to suppress. Through a pre-trial motion to suppress, appellant contends that

the cocaine was seized in violation of his rights under the 4th amendment to the United

States Constitution and Article I, Section 9, of the Texas Constitution. See U.S. CONST .

amend. IV; TEX . CONST . art. I, § 9. According to appellant, because the cocaine was

seized in violation of his constitutional rights, the trial court abused its discretion by

overruling his motion to suppress under the provisions of article 38.23.


Standard of Review


       A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

See Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). Whether the trial court

abused its discretion depends upon whether, given the record and the law, its decision fell

outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915, 918

(Tex.App.–Amarillo 1999, pet. ref’d).




       4
         Appellant’s brief simply states that the evidence was insufficient to support the
jury’s verdict of possession of cocaine with intent to deliver. However, we will treat this as
a contention of legal and factual insufficiency.

                                               4
       Our review of the trial court’s ruling on the motion to suppress is conducted as a

bifurcated review. See Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). The

trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight

to be given their testimony. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.

2007). The reviewing court must, therefore, give almost total deference to the trial court’s

ruling on questions of historical fact and application of law-to-fact questions that turn on an

evaluation of credibility and demeanor.         See Amador, 221 S.W.3d at 673.             When

application of law-to-fact questions do not turn on the credibility and demeanor of the

witnesses, the reviewing court reviews the trial court’s rulings on a de novo basis. See id.


       In the case at bar, the trial court made findings of fact and conclusions of law

regarding its ruling on appellant’s motion to suppress. These findings and conclusions

provide a basis for our review of the trial court’s application of the law to the facts. See

Rodriguez v. State, 919 S.W.2d 136, 139 (Tex.App.–San Antonio 1995, no pet.).


Analysis


       Initially, we observe that the trial court made the following findings of fact and

conclusions of law regarding the motion to suppress:


                                        Findings of Fact

       1. On February 10, 2006, Officer J. Chavez of the Arlington Police
       Department was traveling down South Cooper Street in Arlington, Tarrant
       County, Texas when he saw the Defendant trying to hold onto a black
       female. It appeared to Officer Chavez that the Defendant was either trying
       to hold onto the female or was trying to get the female into a vehicle.



                                                5
       2. Officer Chavez stopped to investigate a possible assault. When Officer
       Chavez stopped, the female was seated in the driver’s side of a vehicle and
       the Defendant was entering the passenger side of the same vehicle. Officer
       Chavez spoke to both the Defendant and the female and obtained their
       identification. Officer Chavez returned to his patrol car to run the
       identification through his car computer. During this time, the defendant was
       seated in the passenger seat of the vehicle and the female was seated in the
       driver’s seat of the vehicle.

       3. While Officer Chavez was running the identification through his in car
       computer, Officer B. Worman arrived to assist. Officer Worman approached
       the passenger side of the vehicle where the Defendant was seated. As
       Officer Worman approached, he heard the Defendant saying Baby, Baby,
       Baby and saw the Defendant pull a baggy containing a white powder
       substance out of his pocket and attempt to conceal it. Based upon what he
       observed, Officer Worman believed the Defendant was concealing a
       Controlled Substance. Officer Worman retrieved the baggy and recognized
       the contents to be Cocaine based upon his training and experience. The
       Defendant was placed under arrest for Possession of a Controlled
       Substance with Intent to Deliver.

       4. After the Defendant was arrested, Officer Worman spoke with the female
       regarding the possible assault that Officer Chavez had observed prior to
       stopping and the Controlled Substance. While Officer Worman was
       speaking with the female or immediately thereafter, the Defendant stated the
       Cocaine was his and that the female had nothing to do with it. When the
       Defendant made this statement, no police officer was asking him questions.
       No police officer made any statements to the Defendant to elicit the
       Defendant’s statement that the Cocaine was his and the female had nothing
       to do with it.

The trial court also entered the following conclusions of law, applicable to the seizure of

the cocaine:


       1. Based upon his observations, Officer Chavez had reasonable suspicion
       to believe that the Defendant had committed or was committing the offense
       of assault.

       2. Based upon his observations, Officer Chavez was entitled to conduct a
       temporary detention of the Defendant and the female.




                                            6
       3. Officer Chavez acted diligently to confirm or dispel his suspicions in a
       reasonable length of time.

       4. During the lawful, temporary detention, Officer Worman observed in plain
       view from a lawful vantage point the Controlled Substances that the
       Defendant attempted to conceal.

       5. The Controlled Substances were not seized in violation of any provision
       of the United States Constitution, the Texas Constitution or the Texas Code
       of Criminal Procedure.

       6. The Controlled Substances are admissible as a matter of law and fact.

       Initially, we observe that the findings of fact regarding the actions of Chavez and

Worman are supported by each officer’s testimony. Therefore, the trial court must have

found the officer’s testimony believable. Which is to say, the decision of the trial court

turned in large measure upon the trial court’s determination of credibility based upon

observations of each witnesses’ demeanor. Therefore, the finding is entitled to almost total

deference by this reviewing court. Amador, 221 S.W.3d at 673. We review the actions of

the officers from the standpoint of an objectively reasonable person so situated as was the

police officer to determine if the historical facts, as found by the trial court, could amount

to “reasonable suspicion” sufficient to justify an investigatory detention. Ornelas v. United

States, 517 U.S. 690, 696-99, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996).


       The actions of Chavez, as found by the trial court and supported in the record,

reflect that an officer observed what he believed to be an assault in progress. The officer

investigated. Despite being told by the appellant and Hill that there was no problem,

Chavez wanted to make sure so he requested identification. Initially, we must determine

if Chavez had reasonable suspicion to initiate the detention. Using the test as set forth in


                                              7
Ornelas and applying it to the facts, as found by the trial court, we conclude that Chavez

did, in fact, have reasonable suspicion to justify the initial detention. Id. The trial court

concluded, and the record supports, that Chavez’s action of trying to verify identification

and checking for warrants was reasonable and did not unduly prolong the detention. For

purposes of appellate review, the question is did the police diligently pursue a means of

investigation that would confirm or dispel their suspicions. See Kothe v. State, 152 S.W.3d

54, 64 (Tex.Crim.App. 2004).        Our review of the record leads to the conclusion that

Chavez diligently pursued a means to confirm or dispel his suspicions. Therefore, the

detention in question was not so long as to become constitutionally prohibited. Id.

Inasmuch as the initial detention was legal, the subsequent seizure of the cocaine, located

in plain view, was also legal. See Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.

2000) (finding that the plain view doctrine requires only that: 1) the officer has a right to be

where he is, 2) the doctrine not be used as a pretext, and 3) it be immediately apparent

that the item seized constitutes evidence). Having found reasonable suspicion for Chavez

to initially have detained appellant, Worman had a right to be where he was and he

immediately recognized the baggy as containing contraband. Accordingly, the trial court

did not abuse its discretion in overruling appellant’s motion to suppress the evidence. See

Oles, 993 S.W.2d at 106. Appellant’s first issue is overruled.




                                               8
                               Article 38.23 Jury Charge Error


Standard of Review


         Appellant next contends that the trial court committed reversible error when it

refused appellant’s request for an instruction to the jury pursuant to article 38.23. See art.

38.23. When reviewing alleged charge error, a reviewing court conducts what is essentially

a two-part inquiry. First, we determine whether error exits. Druery v. State, 225 S.W.3d

491, 504 (Tex.Crim.App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171-72

(Tex.Crim.App. 1985)). If error exists, then we review to determine whether the error

caused sufficient harm to require reversal. Id. The degree of harm required to cause

reversal depends upon whether the error was preserved. Id. Error properly preserved will

require reversal as long as the error is not harmless. Id. See Almanza, 686 S.W.2d at

171. This requirement has been held to mean that any harm, regardless of degree, is

sufficient to require reversal. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.

1986).


         In order to be entitled to a jury instruction on article 38.23(a), an appellant must

meet three requirements:


         (1) The evidence heard by the jury must raise an issue of fact;

         (2) The evidence on that fact must be affirmatively contested; and

         (3) That contested factual issue must be material to the lawfulness of the
         challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510-12 (Tex.Crim.App. 2007).

                                              9
Analysis


       Appellant contends that the evidence produced at trial raises a fact issue, however,

our review of the evidence does not support appellant’s contention. The crux of appellant’s

argument is that the officers involved gave conflicting testimony at the suppression hearing

and before the jury. This does not raise a contested factual issue for two reasons: 1)

assuming there was some sort of conflict between the versions of the officers’ testimony,

the jury did not hear the testimony at the suppression hearing and, therefore, that could not

create a fact issue and 2) appellant’s argument is truly directed at the legal effect of the

testimony the court heard during both the suppression hearing and the trial on the merits.

During the trial, appellant never affirmatively contested the facts of the initial detention by

Chavez, rather, he contested the conclusion Chavez drew from what he observed. This

is not an issue for an article 38.23 instruction for it deals with a question of law, specifically

whether or not the factual observations of Chavez amounted to reasonable suspicion that

an assaultive offense was occurring. See Id. at 510-11. Accordingly, the trial court was

correct in denying appellant’s request for a jury instruction pursuant to article 38.23.

Therefore, appellant’s second issue is overruled.


                                Legal and Factual Sufficiency


       Appellant next contends that the evidence is legally and factually insufficient to

prove that he possessed the cocaine with the intent to deliver.




                                               10
Standard of Review


       Appellant challenges both legal and factual sufficiency. Therefore, we are required

to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find

the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.

See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).


       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s 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.Crim.App. 1988). We measure the legal sufficiency

of the evidence against a hypothetically correct jury charge. See Malik v. State, 953

S.W.2d 234, 240 (Tex.Crim.App. 1997).


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because we


                                              11
may disagree with the verdict. See id. at 417. As an appellate court, we are not justified

in ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See id.

Additionally, an appellate opinion addressing factual sufficiency must include a discussion

of the most important evidence that appellant claims undermines the jury’s verdict. Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal Appeals has

recently declared that, when reviewing the evidence for factual sufficiency, the reviewing

court should measure the evidence in a neutral manner against “a hypothetically correct”

jury charge. Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v.

State, 273 S.W.3d 260, 260-61 (Tex.Crim.App. 2008)).


Legal Sufficiency Analysis


       Appellant’s sole issue regarding the legal sufficiency of the evidence is that the

evidence does not prove that he possessed the cocaine with the intent to deliver. In fact,

appellant admitted possession, but claimed that the possession was for personal use and

to share with his friends. He denied adamantly that the possession had anything to do with

a desire to sell cocaine to his friends.


       Against appellant’s evidence, the State produced evidence that showed that the

amount of contraband in question was 38 grams in weight, including the plastic baggy.

The laboratory reported that the weight of the cocaine was 35.64 grams, not including the

baggy. Further, the record reflects that $1,653 was recovered from appellant. The entire

amount of the cocaine seized was packaged in one baggy, as opposed to small individual


                                             12
dose size packets. At least three officers testified that, based upon their experience and

training, appellant was possessing the cocaine with the intent to deliver. One of the

officers, a narcotics task force member, stated that cocaine packaged for individual use

was normally packaged in 1 gram or 1/10th gram packets. Intent to deliver may be proved

by circumstantial evidence. 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). The fact that appellant was arrested

with what several officers termed “a large amount of cocaine” together with how the

cocaine was packaged and that appellant had on his person a large amount of cash are

factors to be considered in determining intent to deliver. See Jordan v. State, 139 S.W.3d

723, 726 (Tex.App.–Fort Worth 2004, no pet.). Additionally, expert testimony may be

introduced to prove intent to deliver. Id. When we review all of the above evidence in the

light most favorable to the jury’s verdict, we cannot say that the jury acted irrationally in

finding that the appellant possessed cocaine with the intent to deliver. Accordingly,

appellant’s issue regarding the legal sufficiency of the evidence is overruled.


Factual Sufficiency Analysis


       This same evidence, even when viewed in a neutral light, still leads to the

conclusion that the jury was acting rationally when it found appellant guilty beyond a

reasonable doubt of possession of cocaine with intent to deliver. Watson, 204 S.W.3d at

415. We are required to discuss the evidence that appellant contends casts doubt on the

jury’s decision. See Sims, 99 S.W.3d at 603. Appellant insists that his testimony about

having the drugs to “share with,” as opposed to “sell to,” friends logically explains why he

had such a large amount of drugs. Further, appellant asserts that he explained where he

                                             13
got the money the police found on his person. If believed, all of these statements might

defeat the possession with intent to deliver element.5 However, it was up to the jury to

believe or disbelieve the testimony of appellant. Watson, 204 S.W.3d at 417. The jury

observed appellant testifying and was in position to judge his demeanor and credibility and

we are to give appropriate deference to the jury’s determination. Id. When we apply these

principles to the facts before us, we find that the jury’s decision to convict appellant of

possession with intent to deliver was not irrational. Id. at 415. Therefore, we overrule

appellant’s issue regarding the factual sufficiency of the evidence to prove intent to deliver.


                                         Conclusion


       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.




                                                   Mackey K. Hancock
                                                        Justice

Do not publish.




       5
        Moreover, the premise of appellant's contention is faulty. The concept of "delivery"
includes sharing drugs with third parties and is not limited to commercial ventures. Johnson
v. State, No. 03-07-00230-CR, 2007 WL 3306582, (Tex.App.–Austin, Nov. 9, 2007, no
pet.) (mem. op.) (not designated for publication); Fontenot v. State, 792 2nd 250, 256
(Tex.App.–Dallas 1990, no pet.). See TEX . HEALTH & SAFETY CODE ANN . § 481.002(8)
(Vernon Supp. 2008) (defining "deliver").

                                              14
