      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-04-00353-CR



                            Stephen Dwayne Cannada, Appellant

                                                v.

                                 The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. 2040120, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                           MEMORANDUM OPINION


               A jury found appellant Stephen Dwayne Cannada guilty of delivering a simulated

controlled substance. See Tex. Health & Safety Code Ann. § 482.002(a)(2) (West 2003). Cannada

challenges the sufficiency of the evidence supporting the verdict. We affirm the judgment of

conviction.


                                       BACKGROUND

               During the night of January 8, 2004, the Austin Police Department conducted an

undercover narcotics operation around Fifth, Sixth and Sabine streets, an area targeted by the APD

based on the prevalence of crack cocaine dealing. Cannada approached undercover officer Mark
Luera and asked if he was “looking.” When Luera responded that he was, Cannada said he would

“hook up” the officer. Cannada told Luera to follow him, stating, “I’ve got it around the corner.”

Luera refused to go with Cannada. Cannada eventually walked around a corner where he conferred

with two men. Cannada returned carrying an object in his hand and asked Luera for twenty dollars.

Luera gave Cannada the money and Cannada handed the officer a small object wrapped in either

white cellophane or a paper towel. Luera asked Cannada if “it” was “good,” to which Cannada

responded affirmatively. Luera then signaled “takedown” officers, and Cannada was arrested.

               Forensic tests performed on the substance Cannada sold to Luera revealed that it was

not a controlled substance after all, but an ordinary rock, possibly a piece of limestone. Cannada was

indicted and subsequently convicted of delivery of a simulated controlled substance. See id. The

district court sentenced Cannada to eighteen months imprisonment. This appeal ensued.


                                          DISCUSSION

               Cannada brings a single point of error contending that the evidence was insufficient

to support a finding that he was guilty of delivering a simulated controlled substance to Luera. We

will construe Cannada’s point to challenge both the legal and factual sufficiency of the evidence.


Standard of review

               When there is a challenge to the legal sufficiency of the evidence to sustain a criminal

conviction, we consider whether a rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.

App. 2005); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We review all the



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evidence in the light most favorable to the verdict, assume that the trier of fact resolved conflicts in

the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the

verdict. Griffin, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). It is not necessary that every fact

point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted

by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993). We consider even erroneously admitted evidence. Id.

                In a factual sufficiency review, we consider all the evidence equally, including the

testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836

S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). We consider all the evidence, rightly or

wrongly admitted. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.—Austin 2002, no pet.).

Due deference must be accorded the fact-finder’s determinations, particularly those concerning the

weight and credibility of the evidence, and we may disagree with the result only to prevent a

manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). We will deem the

evidence factually insufficient to sustain the conviction if the proof of guilt is too weak or the

contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, 144

S.W.3d at 484-85; see Johnson, 23 S.W.3d at 11.


Application

                Cannada was convicted under section 482.002(2) of the health and safety code, which

provides:




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       (a) A person commits an offense if the person knowingly or intentionally . . .
           delivers a simulated controlled substance and the person:

       ...

       (2) represents the substance to be a controlled substance in a manner that would
           lead a reasonable person to believe that the substance is a controlled substance.

       ...


Tex. Health & Safety Code Ann. § 482.002(a)(2) (emphasis added). Cannada appears to challenge

the sufficiency of the evidence that Cannada (1) “delivered” a (2) substance that was represented to

be a “simulated controlled substance.”


    Delivery

               Cannada emphasizes that after he was arrested, the APD did not find the $20 buy

money in his possession. However, Officer Luera testified that he did give Cannada $20 in exchange

for what was represented to be a rock of crack cocaine. Officer Christopher Conchin, one of the

arresting officers, added that it is not uncommon in undercover arrests to be unable to find the money

given to a dealer.

               Moreover, delivery under section 482.002(a)(2) can be proven without establishing

that Luera actually paid Cannada the $20. The definition of “deliver” in chapter 482 of the health

and safety code includes offering to sell a simulated controlled substance. In addition to testifying

that money actually changed hands, Luera testified that Cannada offered him the substance in

exchange for $20.




                                                  4
                Considering all the evidence in a neutral light, a rational trier of fact could have found

beyond a reasonable doubt that Cannada acted with intent to offer to sell a simulated controlled

substance to Luera. See Vodochodsky, 158 S.W.3d at 509; Zuniga, 144 S.W.3d at 484-85.

Moreover, proof of guilt is not so weak, nor the contrary evidence so strong, as to render the

evidence factually insufficient. See Zuniga, 144 S.W.3d at 484-85; Johnson, 23 S.W.3d at 9. The

evidence is legally and factually sufficient to support the jury’s finding on the element of delivery.


           Representing the substance to be a simulated controlled substance

                Cannada suggests that he could not be convicted of delivering a simulated controlled

substance because there is no evidence that he ever explicitly represented that the substance in

question was crack cocaine, but employed only the slang term “rock.” See Jenkins v. State, 820

S.W.2d 178, 179 (Tex. Crim. App. 1991); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.

1991).1 Jenkins and Boykin, however, construed subsection (1) of health and safety code section

482.002(a), which requires proof that a defendant “expressly represents the substance to be a

controlled substance.” See Tex. Health & Safety Code Ann. § 482.002(a)(1) (West 2003). Cannada,

by contrast, was indicted under subsection (2) of section 482.002(a), which requires proof only that

the defendant “represents the substance to be a controlled substance in a manner that would lead a

reasonable person to believe that the substance is a controlled substance.” The health and safety

code further elaborates:




       1
        In his appellate brief, Cannada claims that he was actually “harassing Officer Luera because
they were present in the area.”

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       (a) In determining whether a person has represented a simulated controlled
           substance to be a controlled substance in a manner that would lead a reasonable
           person to believe the substance was a controlled substance, a court may
           consider, in addition to all other logically relevant factors, whether:

            (1) the simulated controlled substance was packaged in a manner normally
                used for the delivery of a controlled substance;

            (2) the delivery or intended delivery included an exchange of or demand for
                property as consideration for delivery of the substance and the amount of
                the consideration was substantially in excess of the reasonable value of the
                simulated controlled substance; and

            (3) the physical appearance of the finished product containing the substance
                was substantially identical to a controlled substance.


Tex. Health & Safety Code Ann. § 482.003 (West 2003).

               Luera testified that Cannada inquired whether he was “looking.” Luera, who has been

with the police department’s street response unit for one and one-half years, explained that “looking”

is street terminology for, “Are you looking to buy crack?” He added that Cannada’s promise to

“hook [him] up” usually means, “I’ll take care of you. I’ll give you crack. If you’re looking to buy,

I’m the one that’s going to supply it.” Sergeant Robert McCowan, who had been involved in

hundreds of prior drug arrests, also testified. When asked what language is typically used during a

purchase of crack cocaine, McCowan responded, “It can be anything from just simply eye contact.

I’ve made a lot of buys just – you look at a guy and a guy looks at you and you both know what’s

going on. So anywhere from there, all the way up to ask if – you ask them if they have a 20. You

ask them if they’re holding. They’ll ask you if you’re looking. It’s – nobody says, do you have any

crack cocaine?”




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               Luera described the substance delivered to him by Cannada as being wrapped in white

cellophane or a paper towel. Luera indicated that this is common packaging for crack cocaine. This

observation was echoed by Gloria Rodriquez, a forensic drug chemist for APD for thirteen years,

who tests crack cocaine on a daily basis as part of her job responsibilities. Rodriguez testified that

the rock Cannada delivered to Luera resembled a crack rock, and that under the circumstances it was

reasonable for Luera to believe he had been given a rock of crack cocaine.

               Luera further testified that Cannada asked him for the twenty dollars saying that he,

Cannada, would give Luera the rock. McCowan stated his undercover officers usually pay twenty

dollars for one rock of crack cocaine.

               Considering the foregoing evidence, including the packaging, the rock’s similar

appearance to crack cocaine, and the fact that Cannada sold it to Luera in a manner typical of a crack

cocaine deal, see Tex. Health & Safety Code Ann. § 482.003, we conclude that the evidence was

legally and factually sufficient to support the jury’s verdict that Cannada knowingly or intentionally

delivered the rock to Luera in a manner that would have led a reasonable person to believe that it was

crack cocaine. Anderson v. State, 895 S.W.2d 756, 758 (Tex. App.—Texarkana 1994, no pet.). For

the same reasons, we conclude that the evidence is sufficient to support the finding that the rock

Cannada gave Luera was a “simulated controlled substance.” See Tex. Health & Safety Code Ann.

§ 482.001(4) (West 2003) (defining “simulated controlled substance” under Chapter 482 as a

“substance that is purported to be a controlled substance, but is chemically different from the

controlled substance it is purported to be.”).




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                                      CONCLUSION

              Having overruled Cannada’s sole point of error, we affirm the district court’s

judgment of conviction.




                                          __________________________________________

                                          Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: January 12, 2006

Do Not Publish




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