### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00032- CR

Michael Brown, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 07- 3020 05, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Michae l Br o wn appea ls his conviction for knowing ly delivering a simul at ed controlled substance purporting to be the controlled substance coca ine. Tex. Hea lth & Safety Code Ann. § 482.002(a) (2) (West 2003). Th e j u ry found appellant g uilty

. The trial court found three alleg ed prior felony convictions (all involving the delivery or possession of cocai n e)
to be true, enhanc ed the offe nse from a state jail felony to a second- deg ree felony , an d assessed punishment at eleve n y ear s’ imprisonment. See Tex. Penal C ode Ann. § 12.42(a) (2) (West Supp. 2009).

P OINT OF ERROR

I n his sole point of err or, appellant contends that “the trial court err ed by not direc ting a judgme nt of acquittal since the evidenc e is not sufficie n t t o s u p p o rt a g uilty verdic t.”There was no motion for a direc ted or instructed verdic t of not g uilty , and it is unclea r that appellant 1 i s contending that the trial court should have acte d sua sponte
. Appellate courts normally trea t a complaint that the t rial court erre d in overruling an instructed ve rdict motion as a challeng e to the l eg al sufficie ncy of the evidenc e, see W illiams v. State , 937 S.W .2d 479, 482 (Tex. C ri m . Ap p . 1996); Cook v. State , 8 5 8 S

. W

. 2 d 4 6 7 , 470 (Tex. Crim. App. 1993), and that is how appellant has briefe d his contention. The conce rn of the Sta t e that appellant has also raised a challeng e to the fac tual sufficie ncy of the evidenc e is unwar rante d. Appellant has not advanc ed or briefe d such separ ate and distinct issue. See Tex. R. App. P. 38.1(h); Laster v. State , 275 S.W .3d 512, 518, 519 (Tex. Crim. App. 2009). 2

STANDARD OF REVIEW

I n deter mining whether the evidenc e is leg ally sufficie nt to support the judgme nt, we view the evidenc e in the light most favor able to the verdic t, asking whether any rational trier of fac t could have found bey ond a rea sonable doubt a ll the essential elements of the offe nse char g ed. See Jack son v. Virginia , 443 U.S. 307, 319 (1979); King v. State , 29 S.W .3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State , 23 S.W .3d 1, 7 (Tex. Crim. App. 2000). The evidenc e viewed in this light

The State arg

ues that appellant did not prese rve err or for re v i ew b ec au se he did not file a 1 motion or objection. See Tex. R. App. P. 33.1(a)

. A claim reg arding the sufficie ncy of evidenc e to sustain a conviction n ee d not be prese rved for revie w at the trial level and a defe ndant does not waive a ny rig ht by failing to do so. Rankin v. State , 46 S.W .3d 899, 901 (Tex. Crim. App. 2001). The Texas Court of Criminal Appea ls has pointed out that a leg al-suff iciency revie w is a fede ral 2 due proce ss require ment while a fac tual-suffic iency revie w is a cre ature of state law. Laster v. State , 275 S.W .2d 512, 518 (Tex. Crim. App. 2009). These review s require implementation of separ ate and distinct standards. Id. at 519. “Courts and litigants should not c ombine their leg al and fac tual sufficie ncy

analy ses.” Id. 2and all rea sonable i nfer ence s draw n there from are evalua ted in this revie w. Alvarado v. State , 912 S.W .2d 199, 207 (Tex. Crim. App. 1995).

A revie wing court must c onsider all evidenc e, rig htly or wrong ly admitted, that the trier of fac t was permitted to consider. See Garcia v. State , 919 S.W .2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State , 871 S.W .2d 183, 186 (Tex. Crim. App. 19 9 3 ). T he standard for revie w is the same for both direc t and ci rc u m s t an t i al evidenc e. Gree n v. State , 840 S.W .2d 394, 400-01 (Tex. Crim. App. 1992). Appellate courts m easure t h e leg al s ufficie ncy of t he evidence ag ainst a hy pothetically corr ect jury char g e. See Malik v. State , 953 S.W .2d 234, 240 (Tex. Crim. App. 1997). I n analy zing a challeng e to the leg al sufficie ncy of the evidenc e, the revie wing court does not rea lign, disreg ard, or weig h the evidenc e. Rodriguez v. State , 939 S.W .2d 211, 21 8 (T ex . Ap p . —Austin 1997, no pet.). The jury , as the trier of fac t, is the sole judge of the cre dibilit y of the witnesses and of the weig ht to be g iven their testimony

. See Sharp v. State , 707 S.W .2d 611, 614 (Tex. Crim. App. 1986); W illiams v. State , 692 S.W .2d 671, 676 (Tex. Crim. App. 1984).

BACK GR OUND Detec tive J ason Br

y ant of the Austin Police Depa rtment testified that he had ten y ear s of experience with the depar tment, including three y ear s with the mid-level narc otics division. He explained that his underc over activiti es i n cl u ded dressing in “club clothes” if he was making

u nderc over buy s of narc otics in nightc lubs, and “dre ssing down” in open-a ir marke ts but s t i l l appea ring to hav e $ 2 0 t o b u y cra ck coca ine. Br y ant estimated that he had made approximately

one hundred narc otic buy s. He explained to the jury the differ ence in the appea ranc e of powder ed

coca ine often found in clubs and rock or cra ck coca ine more fre quently found in open-a ir marke ts.
3He descr ibed briefly the manufa cture of cra ck coca ine, and he exp l ai n ed t h at the end product

often looked like a sugar cookie, a nd that cra ck cocaine can be sold by brea king off a piece of t he cookie. He stated that if the buy er a sks for a “ nickel,” he will ge t a small piece about the size of a pencil er aser . I f the buy er a sks for a “ 20,” he w ill get a larg er pie ce f

rom the “sug ar c ookie.” Br y ant further ex plained that if a buy er ha s no “standa rd drug dealer ” or the dealer is in jail or the buy er is from out of town, the bu y er will normally visit a known open-a ir marke t, particula rly if he is seeking cra ck coca ine. He stated the prospec tive buy er circ les the b l o ck and nods to those on the street; h e t h en wi ll be signa led to stop or pull over. The buy er then will be approa ched by

the seller of

drug s. On August 14, 2 0 0 7 , De t ective Br y ant and Renee Finto, a L akew ay police officer ,
wer e working undercove r i n what Finto ref err ed to as a “cool” ca r (a n u n marke d police vehicle). They wer e appare ntly dresse d in mufti. They drove to the i nterse ct i o n of 12t h and C hicon s tree ts in Austin, a known open-a ir marke t for cra ck coca ine wher e Br y ant had made a number of purcha ses

o f cr ack coca ine. Br

y ant rela ted that they wer e on a “buy /walk” opera tion which meant that they would make a

buy of cr ack c ocaine and lea ve. “Close- cover ” off icer s would follow the seller and temporar ily stop him for a traff ic violation or for some other rea son if the seller was on foot. These office rs would deter

mine the seller’ s identification and then r elea se the seller . A war rant of a rre st for the seller would later be obtained for the narc otic t ra n saction. Br y ant explained that this was

nece ssary to preve nt the sellers at an open-a ir market fr o m believing the locations wer e being targ eted by

underc over police

.

4As Br y ant and Finto circ led the block at 12th and Chicon streets, Bry an t rec eived a message from o n e o f t h e s u rv eillance team over the pol ice radio that a driver of a car following Br y ant’s vehicle was try

ing to “ flag him down.” B ry ant observe d the ca r and he (Bry ant) stopped his vehicle in a parking lot at t h e l o ca t ion. Br y ant testified that appellant, whom he identified in court, g ot out of the other car and approa ched the passeng er s i d e o f Br y ant’s vehicle wher e Finto

was seate d. Br

y ant repor

ted that h e told appellant he wanted a “20,” meaning cra ck coca ine, and that they had $22. Acc ording to Br y ant, appellant produce d a plastic g roce ry s t o re bag in which there was a larg e cookie appea ring to Br y ant to be cra ck coca ine. Appellant broke off a p i ec e of the cookie and handed i t to Bry ant. Finto g ave a ppellant $22 in curr ency . Br y ant aske d appellant if the s ubstance was “g ood” and that appellant indica ted “like y eah, it’s g ood.” B ry ant was of the opinion that what he had been hand ed wa s cr ac k coca ine and the siz e was standard for a “20,” normally 0.2 g rams of cr ack c ocaine . Br y ant testified that it was a quick trade and no pleasa ntries

wer e exchang ed. Br

y ant and Finto left the scene expecting the near by surveillance office rs to take

over a t this poi nt.

Offic er Renee Finto briefly testified as to he r version of the transac tion. She stated that she and Br

y ant as underc over office rs wer e driving around the are a of 12th and Chicon streets when they wer e flag g ed down by appellant. They drove into a parking lot a nd appellant pulled his vehicle in next to the underc over vehicle. Ap p el l ant g ot out of his vehicle and approa ched the passeng er side of the other vehicle wher e Finto was seate d. Finto stated that appellant asked “[w]hat

we wanted” or “[w]hat we wer e looking for or something like that.” Appellant was told the couple h ad $ 22. Appellant broke off a piece of the cra ck coca ine-a ppear ing cookie that he produce d

5and handed it to Br y ant. Finto handed appellant $22. They then drove awa y . Finto made an in-court identification of a

ppellant as the se ller. I n his testimony , Br

y ant repor ted that afte r he and Finto left the scene , he drove to the

near by police station and contac ted Detec tive J ason Ace vedo, who was in char g e of the opera tion. Br y ant g ave Ace vedo the substance obtained from appellant. He then filled out forms re l ati ng to the chain of custody

while Ace vedo “f

ield-tested” the substance . The test re veale d that it was not

coca ine. B ry ant was so sure that it was cra ck coc aine he asked tha t it be tested ag ain. Detec tive Ace vedo testified that he tested the white-rock- like substance br oug ht to him by Br

y ant that had the appea

ranc e of cra ck coca ine. The trial court sustained appellant’ s objection to the results of that advanc ed field test. Ace vedo descr ibed in de tail the proce dure used to ensure the chain of

custody

. Stacey G. Smit h, a fore nsic drug chemist for the Austin Police Depa rtment, testified

as to her backg round and qualifica tions. She repor ted on proce dures to ensure the chain of custody of substance s submitt ed to the labor atory . She acknow ledg ed that she ha d rec eived a nd tested the substance in State’s exhibi t number 1, identified as the substance rec eived by Br y ant from appellant. Smit h conducte d a chemica l analy sis on the substance involved and repor ted that the s u

b s ta n c e te s ted

was chemica lly differ ent from cra ck coca ine. I t was not a controlled substance of any kind. She did not testify nor wa s she aske d what the substanc e ac tually was. Appellant did not testify

or ca ll any

witnesses. B oth sides rested a nd closed.

6AP P LICABLE LAW Appellant wa s convicted under the provisions of section 482.002(a) (2) of the Texas Health and Saf

ety Code which provide s in pertinent par t: (a) A person commits an offe nse if the person knowing ly or intentionally manufa cture s with the intent to deliver or delivers a simulated controlled substance and the pe rson:

. . . (2) repr esents the s u b s t ance to be a controlled substance in a manner that would lead a rea sonable person to believe that the su b s t an ce is a controlled substance.

Tex. Health & Safety

Code Ann. § 482.002(a )(2)

. 3 Section 482.003 of the Hea lth a nd Safety Code provides some evidentiar y rules for

case s tried under

section 482.002(a )(2) . The statute pr ovides: (a) I n deter

mining whether a person has repr esente d a simula ted controlled substance to be a controlled substance in a manner that would lead a rea sonable person to believe the substance w as a c ontrolled substance , a cour t may consider, in a ddition to all other log ically

rele vant fa ctors, whe ther: (1) the simulated controlled substance w as pac kag ed in a manne r normally used for the deliver

y of a c ontrolled substance ;

Chapter 482 of the Hea lth and Safety Code define s offe nses re l at ed t o s i m u l at ed 3 controlled substances. These substances are define d as substances that purport to be controlled substances but a re chemica lly differ ent from the substances they purport t o b e . . . . Eac h of the statutory means [under section 482.002 of the Hea lth an d Safety Code] is exclusive and distinct. 6 Michae l B. Char lton, Texas Practice : Texas Criminal L aw § 30.10 at 439-40 (2d e d. 2001). 7(2) the delivery or intended delivery included an exchang e of or demand for

proper ty as consideration for delivery of the substance and the amount of the consideration wa s substantially in excess of the rea sonable value of the simulated controlled substanc e; and (3) the phy sical appea

ranc e of the finished product containing the substance was substantially

identical to a c ontrolled substance

. (b) Proof of

an off er to sell a simul ated c ontrolled substance must be corr oborate d by a person other than the offe ree or by evidenc e other than a statement of the offe ree .
Tex. Health & Safety

Code Ann. § 482.003 (West 2003). Section 482.003 does not require proof of all or any one o f the listed fac tors in order to support a conviction. Such fa ctors ar e mer ely circ umstances that a court may consider in ad d i t i o n to all other logic ally rele vant fac tors in deter mining whether a rea sonable person would have believed such substance was a controlled substance. See Holliman v. State , 692 S.W .2d 120, 122 (Tex. App.—Waco 1985, pet. re f’d)

.
AP P ELL ANT’S ARG UMENT Appellant’s attack upon the leg al sufficie ncy of the e v id e n c e to s u p p o r t the conviction is not specific ally direc ted to the lack of evidenc e to sustain the elements of the offe nce. Appellant g ener ally ref

ers to “the vagueness and q u es t i o nable nature of some of the testimony .” Actually , appellant appea

rs to complain about evidenc e that he would have liked the State to have prese nted. First, appella nt contends that there was evidenc e of a microphone or microphones available for use in the underc over vehicle but that no videotape of “a l l ege d statements” was produce d by

the prosec ution. There is nothing in the rec ord t hat any microphone was us ed or any

8videotape made. Appellant’s trial counsel made no inquiry of the witnesses in this reg ard. Fur ther,

no other relief was reque sted. Second, appellant complains that there was a lack of evidenc e about appellant’ s arr est or detention, either immediately afte r the transac tion or later on a war rant of arr est. Appellant fails to point out how t his absenc e of e vidence rende rs t he evidence leg ally insufficient
to sustain the conviction. Appellant arg ues that if he had been arr ested and sear ched or his vehicle

sear ched immediately afte r the transac tion, the office rs might have found the larg e “sug ar cookie” and the $22 g iven to the appellant. Detec tive Br y ant had descr ibed the “buy /walk” proce dure as to why the money is not marke d or the seller is not taken in t o cu s t o d y fo l l owing the transac tion. Appellant was on trial in open court to answe r to the indictment ag ainst him. Appellant fails to point
out how evidence o f any ear lier arrest or detention on the s ame charg e would rende r t he evidence prese nted leg ally

insufficient. Appellant further questions the lack of evidenc e about the time lapse betwee n the “buy ” and the substance being tested by Detec tive Ace vedo. There was no time-fra me evidenc e offe re d

. The “buy ” was made on Aug ust 14, 2007, and the evidenc e ref ers to Detec tive Br

y ant driving direc tly to the near by police station on that day

. The time lapse was not made an issue at trial and appe llant does not reve al how this could possibly impact the point of er

ror he has ra ised. I n addition, appellant lastly asser ts without m ore:

Discre pancie s also exis t in the testimony betwee n who the materia l was delivere d to. Also, there was vag ueness about the sequenc ing of the delivery of th e substance and the delivery of the money pay ment. Alt h o u gh i t s t rains cre dibilit y to believe appellant g ave the substance to the office r befor e rec eiving the money , that is, in fac t the testimony

of the off icer

.

9Appellant does not explain how the order in which the money an d s u b s tance

was chang ed prevents t he evidence fr o m b eing leg ally sufficie nt. We do not find that appellant’ s arg uments and asse rtions have mer it.

DISCUSSIO N

We turn now to the logic ally rele vant evidenc e s u p p o rt ing the leg al sufficie ncy of the evidenc e. The transac tion took place at o r n ea r t h e intersec tion of 12th and Chicon streets, an open-a ir marke t for the sale of cra ck coc aine. Unde rcove r De tective B ry ant had made a number of “buy s” at this location, all being purcha ses of cra ck coca ine. On Aug ust 14, 2 0 0 7 , Br y ant and his partne r were in this are a worki n g u n derc over. Appellant flag g ed them down and approa ched their stopped vehicle. He asked what they wanted or wer e “looking for.” Br y ant re s p o n d ed “2 0” usi ng

a s t re et t er m meaning cra ck cocaine. Appellant had a larg e “suga r cookie” clearly appea

ring to be

cra ck coca ine. He broke off a piece of the cookie, a white rock looking substance, g ave it to Br y ant, and took $22 from Br

y ant’s partne r. I n response to Br y ant’s questions, appellant indicated the substance was “g ood.” The office rs immediately left the scene . The substance “fie ld te sted” at the police station s h o wed that it was not cra ck coca ine. The later chemica l analy sis reve aled that the white-roc k-like s u b s t an ce wa s not coca ine or any kind of a controlled substance. L ooking to the statutory evidentiar

y fac tors available under section 482.003, we find two that are applicable

. The “simulated controlled substance was packa g ed in a manner n o rm al l y used for the delivery of a controlled substance.” Tex. Hea lth & Safety Code Ann. § 482.003(a) (1). Detec tive Br y ant testified th at when appellant produce d the “sug ar cookie” it was wra pped in a plastic bag in the manner normally used by sellers of cra ck coca ine with one corne r of the bag torn, ripped or cut. This was the
10manner of packa g ing of other cra ck coca ine that he had previously purcha sed underc over. Moreove r,

the “phy sical appea

ranc e of the finished product containing the substance was substantially identical
to a controlled substance.” Id

. § 482.003(a) (3). The experience d narc otic office r Br y ant testified that the cookie and the piec e g iven him had the phy sical appeara nce of cra ck cocaine he had purcha sed in the past. Offic er Finto and Detec tive Ace vedo also testified that the substance appea red identical
to cra ck coca ine. When the result of the field test was repor ted, Br y ant wanted the su b s tance tested aga in beca

use he was convinced that the s ubstance was c rac k coca ine. Keeping in mind the standard of revie w and considering all of the evidenc e in the light most favor able to the jury ’s verdic t,

we conclude that any rational trier of fac t co u ld have found bey ond a rea sonable doubt all the essential elements of the offe nse char g ed under the Tex. Hea lth & Safety Code Ann. § 482.002 (a) (2). We overrule appellant’ s sole point of err or.

The judg ment is affirme d.

J ohn F. Onion, Jr., J ustice Be fore J ustices Patterson, He nson and Onion* Affir med Filed: F ebrua

ry 10, 2010 Do Not Publish * Be fore J ohn F. Onion, J r., Presiding J udg e (re tired), Texas Court of Criminal Appe als, sitti ng by assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 2005).

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