Opinion
No. 05-06-00632-CR
Opinion issued April 24, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause No. F05-34218-IKX.
OPINION
Appellant was indicted for, and pleaded not guilty to, possession with intent to deliver cocaine in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. §§ 481.112(a), (d) (Vernon 2003). The indictment also alleged one previous conviction. A jury found appellant guilty of the lesser-included offense of possession of cocaine in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. §§ 481.115(a), (d) (Vernon 2003). Appellant pleaded true to the allegations contained in the enhancement paragraph. The trial court assessed appellant's punishment at sixteen years' confinement in the penitentiary. Appellant now appeals his conviction, raising two issues: whether the trial court erred in denying his challenge for cause of a prospective juror, over his objection, in violation of article 35.16 of the Texas Code of Criminal Procedure, and whether the judgment improperly reflects appellant was convicted of the offense of unlawful possession with intent to deliver a controlled substance, to-wit: cocaine, and also improperly reflects the trial court found the allegations in the enhancement paragraph of the indictment to be true. For the reasons that follow, we resolve appellant's first issue against him. We resolve appellant's second issue in his favor, in part, and against him, in part. We modify the judgment to reflect appellant was convicted of unlawful possession of cocaine in an amount of four grams or more but less than two hundred grams. As modified, we affirm the judgment.
Background
On December 30, 2004, Irving police officer Matthew Roth was on routine patrol about ten o'clock in the evening when he noticed a truck blocking traffic in the left turn lane of a busy intersection. Roth drove through the intersection, made a U turn, and stopped his vehicle behind the truck. Another officer, responding to a call of an unconscious person in a vehicle, arrived about the same time. After activating their emergency lights, both officers approached the driver's side of the truck where they saw the sole occupant, identified as appellant, behind the wheel with his foot on the brake pedal, the truck in drive, and appellant's right hand holding a plastic bag containing a white substance. Roth believed the white substance to be cocaine. When Roth knocked on the window, appellant woke up and opened the door. Roth asked him to step out of the truck. On the seat where appellant had been sitting, there was $604 rolled up and secured with a rubber band. The plastic bag contained thirty-five cocaine rocks, individually wrapped in smaller plastic bags, and secured with twist ties. Appellant was arrested for possession of cocaine; the drugs and money were seized. A search of the truck also revealed a small amount of marijuana. The seized drugs were analyzed at the Southwestern Institute of Forensic Sciences at Dallas (SWIFS). The forensic chemist's report, admitted into evidence at trial, shows the larger plastic bag contained a total weight of 14.55 grams of cocaine individually wrapped in 25 plastic baggies. Dallas police officer David Potts testified as an expert witness at trial. In his expert opinion, the amount of cocaine and the packaging indicated it was individually packaged for resale. Potts concluded the appellant was a mid-level drug dealer and the cocaine had a street value of $1450. Appellant did not testify at the guilt-innocence stage of trial. Through the testimony of a certified Dallas County sheriff's fingerprint expert, appellant was shown to be the same person who was convicted of the previous offense listed in the enhancement paragraph of the indictment (cause number F03035855-VR), and listed in the penitentiary packet the State offered, and the trial court admitted, into evidence. Appellant was also established as being the same person convicted in three other felony offenses and seven misdemeanor offenses, which were also admitted into evidence during the punishment hearing. Appellant testified at the punishment hearing. Appellant testified he had previously been confined more than once, had been a drug addict since he was thirteen years old, and asked for drug rehabilitation rather than imprisonment. Appellant testified confinement in prison would do him no good.Appeal
In his first issue on appeal, appellant contends the trial court reversibly erred by denying his challenge for cause of prospective juror Whitehead, juror number 35, over his objection, in violation of article 35.16 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). Appellant contends Whitehead should have been removed for cause because he stated he would give a police officer greater credibility than a lay witness. The State disagrees, contending Whitehead was not properly subject to a challenge for cause. Although Whitehead initially said he would expect a police officer to be more credible, the State points out that Whitehead later assured the trial court he would consider all the testimony equally. Therefore, the trial court did not abuse its discretion in denying appellant's challenge for cause. In his second issue, appellant contends the judgment should be modified in two ways: to properly show he was convicted of possession of cocaine, not possession of cocaine with intent to deliver; and to delete the finding of "true" to the allegations in the enhancement paragraph of the indictment. The State agrees the judgment should be modified to reflect appellant was convicted of possession of cocaine; however, the State contends the presumption of regularity operates to support the finding of true of the allegations in the enhancement paragraph of the indictment. In relevant part, the record reflects the following occurred during voir dire examination of the general panel of prospective jurors:[Defense counsel]: Who here feel like police officers — give police officers a starting point better credibility? Number 35 [Whitehead]?
Prospective Juror: That's just a starting point, not a denigration of any other witness and not to say that I wouldn't weigh it.
[Defense counsel]: I would fully expect anybody to wait. What I am specifically focusing on is the starting point and if the starting point is you would give a police officer greater credibility?
And, Mr. Whitehead, you would?
Prospective Juror: Yes.Based on the above exchange, through counsel, appellant challenged juror number 35 for cause. The State opposed the challenge. Juror number 35 was then individually questioned by the trial judge, during which the following occurred, in relevant part:
THE COURT: Mr. Whitehead, the attorneys are going to ask you some follow-up questions to clarify for me some of the answers previously given.
[Defense counsel]: Mr. Whitehead, was I correct in my understanding that you would give a police officer, because he is paid to enforce the law and uphold the laws, you would give the police officer a better starting point, credibility wise, than somebody who is not a police officer?
PROSPECTIVE JUROR: As the question is asked, initially, yes, I would expect him to be more credible than just anybody else off the street.
[Defense counsel]: Okay. And I understand that you would wait and hear the testimony and your evaluations may change, correct; but from the get-go, you are going to give a police officer more credibility?
PROSPECTIVE JUROR: Yes.
[Defense counsel]: Okay, no, I don't have any further questions.
[Prosecutor]: Yes, sir. From the get-go, let's make sure we are both on the same page here, are you talking about when they walk into the courtroom or after they take an oath and actually start providing testimony?
PROSPECTIVE JUROR: Just when they walk into the courtroom.
[Prosecutor]: So when they walk into the courtroom just because they have a uniform on?
PROSPECTIVE JUROR: Correct.
[Prosecutor]: No further questions, Your Honor.
THE COURT: Now, I am a little confused, let me see if I [can] clarify for myself. You heard my previous statement, whether you are a priest, President of the United States, a police officer or a milkman, makes no difference, when you come in this courtroom to testify, it's your credibility, once they are sworn in, that counts. If you start anyone else a little bit ahead of the other, then that obviously gives an unfair advantage to the other.
Do you start somebody out a little bit ahead than the other witness?
PROSPECTIVE JUROR: For the purpose of the court, I would consider all testimony equally.
THE COURT: You can put aside your preconceived notion of a police officer and start everyone on a level playing field?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: Is that what you are telling me?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: Thank you. Thirty-five is denied.
After the trial court instructed the attorneys to strike their jury lists, the following occurred, in relevant part:
[Defense counsel]: Comes now the defendant, by and through counsel, and requests for additional peremptory challenges due to the fact that the Court has denied my challenge for cause of Juror No. 35, who said that — who initially said from the beginning he would give police officers more credibility. I would submit that that juror should have been struck for cause and I have run out of peremptory challenge and therefore are requesting additional peremptory challenges.
THE COURT: Denied.
[Defense counsel]: Okay. I would like to point out to the Court that I have had to take on a juror that I would have struck had I not run out of peremptory challenges, specifically Juror No. 42, who stated during voir dire who was a psycho therapist dealing with people with drug addictions and she is objectionable, but I ran out of peremptory and end of my statement.
THE COURT: Motion's denied.