NO. 12-07-00093-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH D. FREEMAN, § APPEAL FROM THE 241ST

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Kenneth D. Freeman appeals his conviction for delivery of a controlled substance. In three

issues, Appellant contends that the evidence was not legally or factually sufficient to support the

jury’s verdict and that the trial court erred in allowing evidence of extraneous offenses to be

introduced. The State did not file a brief. We affirm.

BACKGROUND

In August 2006, officers from the City of Tyler Police Department conducted an investigation

of Appellant. The police officers used a confidential informant in their investigation who arranged

a meeting with Appellant to purchase crack cocaine. The meeting was scheduled at a Wal-Mart

retail store in Tyler, Texas. Tyler police officers conducted video and audio surveillance of the

meeting. Appellant did not deliver the cocaine to the informant himself. Instead, according to the

State’s theory of the case, he used Kevin Cain as an intermediary. Cain sold crack cocaine to the

informant in the Wal-Mart parking lot. Although the informant had contact only with Cain, the

police observed Appellant in the Wal-Mart parking lot at the time of the transaction, and they

observed Cain entering Appellant’s vehicle after completing the sale.
2

The informant contacted Appellant the following day to purchase more crack cocaine. This

time the meeting was arranged at a Denny’s restaurant. As before, the informant purchased cocaine

from Cain, and the police observed Appellant in the area.

Cain was arrested for selling cocaine to the informant. He told the police that he worked for

Appellant, and he identified Appellant in the video recordings of the two transactions. He further

stated that Appellant had driven him to the two transactions and that the drugs had belonged to

Appellant.

A Smith County grand jury returned two indictments, one for each delivery of cocaine,

against Appellant. Appellant pleaded not guilty, and the indictment alleging the Wal-Mart

transaction proceeded to trial. The jury found Appellant guilty of the offense as charged. Appellant

pleaded true to the allegation that he had a prior felony conviction, and the jury assessed punishment

at life imprisonment and a fine of $10,000. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his first and second issues, Appellant argues that the evidence was not legally or factually

sufficient to support his conviction. Specifically, Appellant argues there was no evidence that he

personally delivered crack cocaine to the informant.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the

Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16,

99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim.

App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). The standard

for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The evidence is examined

in the light most favorable to the jury’s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Williams, 235 S.W.3d at 750. 

In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends

to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to
3

disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we

are authorized to disagree with the jury’s determination, even if probative evidence exists that

supports the verdict, our evaluation should not substantially intrude upon the jury’s role as the sole

judge of the weight and credibility of witness testimony. Id.; see Clewis v. State, 922 S.W.2d 126,

133 (Tex. Crim. App. 1996). Where there is conflicting evidence, the jury’s verdict on such matters

is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso

1996, pet. ref’d). Ultimately, we must ask whether after a neutral review of all the evidence, both

for and against the finding, the proof of guilt is so obviously weak as to undermine confidence in the

jury’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. Crim. App. 2000). A verdict will be set

aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so

overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and

manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see also Watson v.

State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim.

App. 2003).

Under either the legal sufficiency or factual sufficiency standard, our role is that of appellate

review, and the fact finder is the sole judge of the weight and credibility of a witness’s testimony.

Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000). The fact finder may choose to

believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986).

The sufficiency of the evidence is measured against the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge would include one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the defendant

was tried.” Id.

As limited by the indictment, a person commits the offense of delivery of a controlled

substance by knowingly delivering, either actually or constructively, a controlled substance,

specifically cocaine, in an amount of more than one gram but less than four grams. TEX. HEALTH
4

& SAFETY CODE §§ 481.002(8), 481.112(a)(c) (Vernon 2003).

Analysis

Although characterizing his argument in terms of the legal and factual sufficiency of the

evidence, Appellant’s complaint stems from the trial court’s decision to submit two theories of

liability to the jury. Specifically, the trial court instructed the jury that it could find Appellant guilty

if he actually transferred cocaine to the informant or if he constructively transferred it to the

informant. Appellant argues that there is no evidence that he actually transferred cocaine to the

informant, that the trial court should not have instructed the jury on that theory, and that he should

be acquitted or have a new trial because of a lack of evidence of an actual transfer.

Appellant never asked the trial court not to instruct the jury on alternate theories because of

a lack of evidence, and this complaint is not preserved for our review. See TEX. R. APP. P.

33.1(a)(1)(A); see also TEX. CODE CRIM. PROC. ANN. arts. 36.14, 36.15 (Vernon Supp. 2007);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Appellant did object to the charge

arguing that the State should be forced to elect between the two theories, actual or constructive

delivery, because he was entitled to a unanimous verdict on one theory or another. 

Appellant does not argue this issue on appeal. Moreover, the trial court properly overruled

this objection because in a delivery of a controlled substance case, the State may plead alternate

forms of delivery, and it may not be forced to elect a particular method on which to prosecute.

Rodriguez v. State, 89 S.W.3d 699, 701–02 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d) (citing

Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991)); see also Ngo v. State, 175 S.W.3d

738, 746–48 (Tex. Crim. App. 2005). Each method may be submitted alternatively in the jury

charge. Zanghetti v. State, 618 S.W.2d 383, 386–87 (Tex. Crim. App. 1981); Atuesta v. State, 788

S.W.2d 382, 385 (Tex. App.–Houston [1st Dist.] 1990, pet. ref’d). Where a general verdict is

returned and the evidence is sufficient to support a finding under any of the alternative paragraph

allegations submitted, no error is shown. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App.

2002); see also Kitchens, 823 S.W.2d at 258 (“It is appropriate where the alternate theories of

committing the same offense are submitted to the jury in the disjunctive for the jury to return a

general verdict if the evidence is sufficient to support a finding under any of the theories

submitted.”).
5

Therefore, in evaluating the sufficiency of the evidence, we turn our attention to the two

theories alleged in the indictment, that Appellant actually transferred the cocaine to the informant

and that he made the same transfer constructively. Transferring a controlled substance to an

intermediary to be transferred to a third party is a constructive transfer. See Sims v. State, 117

S.W.3d 267, 277–78 (Tex. Crim. App. 2003). There was evidence that Appellant transferred the

cocaine to the intermediary and that it was then transferred to a third party, the informant. Both the

informant and Cain testified about a series of events that began with Appellant’s giving cocaine to

Cain and ended with Cain’s selling the cocaine to the informant. Additionally, Cain testified that

Appellant drove him to the Wal–Mart and that he worked for Appellant. Finally, the video of the

transaction showed Appellant at the scene, and an inmate testified that Appellant had admitted the

arrangement to him, saying that he could not be convicted for delivering cocaine to the informant

because he had not personally done so. This is evidence that Appellant constructively delivered the

cocaine. 

Cain made the actual delivery of cocaine to the informant. However, the jury was instructed

on the law of parties. Under the law of parties, a person, in this case Appellant, is responsible for

the actions of another if he, with the intent to promote or assist the commission of the offense,

solicits, encourages, aids, or attempts to aid the other person to commit the offense. TEX. PENAL

CODE ANN. § 7.02(a)(2) (Vernon 1994). Cain’s testimony, along with the circumstantial evidence

including Appellant’s presence at the scene and Appellant’s arranging the transaction with the

informant, is evidence that Appellant aided Cain in the deliveryof cocaine with the intent to promote

or assist that delivery. 

Viewing the evidence in the light most favorable to the jury’s verdict, the jury could have

reasonably determined that Appellant constructively delivered the crack cocaine to the informant

through Cain. Alternately, applying the law of parties, the jury could have reasonably concluded that

Appellant aided Cain in the actual transfer of the cocaine. Therefore, the evidence was legally

sufficient to support the jury’s verdict.

A review of all of the evidence without the light most favorable to the verdict reveals some

evidence that is contrary to the verdict. Specifically, there were reasons that the jury might have

doubted the testimony of the informant as well as that of Cain. Appellant presented evidence that
6

Cain had a pending drug charge and the informant had been compensated. Furthermore, Appellant

presented evidence from a witness who claimed that the conversation in the jail about the drug deal

did not happen.

Nonetheless, we must consider this evidence in the context of the record as a whole.

Appellant was at the scene of the offense. While the informant’s and Cain’s testimony did not go

uncontested, the jury could have believed their testimony, which was supported by significant

circumstantial evidence.

Generally, it is for the jury to determine the weight to be afforded the testimony of a witness

and to resolve any conflicts in the evidence. See Wesbrook, 29 S.W.3d at 111 (Tex. Crim. App.

2000); see also Watson, 204 S.W.3d at 409. The issues raised by Appellant are not so troubling as

to cause us to conclude that the great weight and preponderance of the evidence contradicts the jury’s

verdict or that the guilty verdict is “clearly wrong” or “manifestly unjust.” See Watson, 204 S.W.3d

at 417. Our review of the record as a whole, with consideration given to all of the evidence both for

and against the jury’s finding, has not caused us to conclude that the proof of guilt is so obviously

weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction

clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to

support the jury’s verdict. We overrule Appellant’s first and second issues.

EXTRANEOUS OFFENSES

In his third issue, Appellant contends that the trial court erred in admitting evidence of

extraneous offenses because the State did not provide prior notice of its intent to utilize the evidence

at trial as required by Texas Rule of Evidence 404(b). The evidence in question is the second drug

transaction at the Denny’s restaurant and evidence that Appellant’s house was a place where crack

cocaine could be purchased. Appellant does not contend that this evidence was substantively

inadmissible extraneous conduct, but instead addresses only the procedural issue of whether the State

provided sufficient notice of intent to use this evidence. 

Applicable Law

Rule 404(b) of the Texas Rules of Evidence provides as follows:
7

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order

to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or

accident, provided that upon timely request by the accused in a criminal case, reasonable notice is

given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that

arising in the same transaction.

TEX.R.EVID. 404(b). Thus, Rule 404(b) conditions the admissibility of extraneous offense evidence

on the State’s compliance with the notice provision found in the rule. TEX. R. EVID. 404(b);

Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). When substantively admissible

extraneous offense evidence is improperly admitted because the State failed to provide the required

notice, the harm analysis is different from when the evidence is substantively inadmissible. Id. at

824–25. Because the notice requirement found in Rule 404(b) does not relate to the substantive

admissibility of the evidence, the lack of notice does not render the evidence inherently unreliable

or inadmissible. Id. (citing Roethel v. State, 80 S.W.3d 276, 281–82 (Tex. App.–Austin 2002, no

pet.)). The harm analysis then must focus on the effect of the procedural noncompliance with the

defendant’s ability to prepare for the evidence. Id.

Analysis

The State did provide Appellant with notice of the prior bad acts in the materials it produced

as part of pretrial discovery. Specifically, in its discovery compliance form, the State checked a spot

next to a sentence that read as follows:

State intends to offer extraneous offenses or bad acts included in attached documents, including

defendant’s prior criminal history as well as any bond violation committed by the defendant while

on bond for this offense, under [Texas Rule of Evidence] 404(b) and 609[,] rules of criminal [sic]

evidence[,] and 37.07(3)(G)[,] code of criminal procedure.

Appellant does not deny that this provides some kind of constructive notice, but argues that

it did not give him “reasonable, specific notice” of what it was that the State intended to offer. 

Appellant argues further that he was not prepared to defend against the additional information

because of the deficiency of the notice. Notice of extraneous acts that refers to other materials has

been held to be sufficient to meet the requirement of the rule. In Splawn v. State, 160 S.W.3d 103,

112 (Tex. App.–Texarkana 2005, pet. ref’d), the court held that the State’s notice was sufficient to
8

allow the appellant to prepare for trial because, although it referenced other material, it was

reasonably calculated to draw defense counsel’s attention to an extraneous offense described in the

referenced material. However, the notice referring to other material in Splawn was far more detailed

than the one sentence reference in this case. And there is at least a theoretical risk that a broad notice

of intent to rely on certain evidence will not provide the “reasonable notice” sufficient to apprise the

other side of the intent to offer the evidence. 

The court of criminal appeals has held that a trial court, when considering an objection due

to lack of notice, should not evaluate the State’s compliance with Rule 404(b) in terms of whether

the defendant is harmed, but look instead to whether the State provided the required notice.

Hernandez, 176 S.W.3d at 823–24. Appellate review, however, does consider the harm, if any,

occasioned by the lack of notice of substantively admissible evidence. Id. at 825. And any error in

admitting such evidence is not “injurious” if the defendant was not surprised. Id.

There was no surprise in this case. During the hearing on the matter, Appellant’s counsel

specifically stated, “Judge, I didn’t say I was surprised or I was disadvantaged. All I’m saying is it

didn’t meet the requirements of 404(b), Judge.” Therefore, we need not decide whether the notice

was sufficient to apprise Appellant of the evidence because his counsel was not surprised by the

extraneous information. Said another way, even if the State’s notice was not sufficient to comply

with the rule, Appellant’s ability to prepare for the evidence was not hampered and he was not

surprised or harmed. We overrule Appellant’s third issue.

DISPOSITION

Having overruled Appellant’s three issues, the judgment of the trial court is affirmed.

 BRIAN HOYLE 

 Justice

Opinion delivered May 21, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)