Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Stevens OPINION Darrion Deshon Biggers was charged by indictment with the first-degree-felony offense of manufacture or delivery of methamphetamine, four grams or more, but less than 200 grams, in a drug-free zone. The indictment also contained an enhancement paragraph that charged Biggers as a repeat offender. A jury found Biggers guilty and also determined that he committed the offense in, or within, 1,000 feet of a drug-free zone, i.e., a school. After pleading true to the enhancement paragraph, Biggers was sentenced to thirty-three years’ confinement in prison. Biggers appeals, arguing (1) that the judgment used to enhance his punishment did not establish that he had been convicted of a felony under Section 12.42 of the Texas Penal Code and (2) that there was insufficient evidence to establish his intent to deliver. For the reasons below, we affirm the trial court’s judgment. Background On February 24, 2018, around 9:00 in the evening, Jeff Padier, a K-9 officer for the Paris Police Department, observed a truck without a working taillight traveling south on Fitzhugh. Padier made a traffic stop of the truck. When he walked up to the vehicle, Padier observed a driver, a front-seat passenger, and a backseat passenger, who was later identified as Biggers. Padier also smelled the odor of marihuana. Padier began a conversation with the driver, who admitted that they had been smoking marihuana. Padier placed handcuffs on the driver, at which time another officer arrived at the scene. After speaking to the front-seat passenger, Padier asked him to exit the vehicle and then placed him in handcuffs.[1] At that point, Padier noticed that Biggers seemed “extremely nervous” and that he tensed up and hid whatever was in his right hand. Padier asked Biggers to exit the vehicle, but “[w]hen [Biggers got] to the opening of the door[,] he shove[d] . . . [Padier] and . . . [took] off running.” Padier immediately began chasing Biggers, at which point he saw Biggers throw a light-colored object with his right hand.[2] After running another ten or fifteen feet, Biggers “hit[] a patch of mud and stumble[d] and glance[d] back and [threw] something else out of his right hand.” After Biggers fell, Padier handcuffed him and placed him in another officer’s vehicle. Padier then went back to look for what Biggers had thrown and found “a wad of crystal substance in the mud that had been in the area where [he] first saw something thrown” and “methamphetamine that was located on — in the middle of 8th Street.”[3] Padier testified that the incident occurred in what he considered to be a high-drug area. Padier also explained that, when considering the weight of the drugs, he did not believe the methamphetamine was a “user amount.” Padier stated, “I’ve arrested a lot of methamphetamine users. In my experience a methamphetamine user will have well less than a gram on them” because they have either just bought it, or they have already used some of it. Sergeant Leigh Foreman, who was called as an expert[4] in narcotics trafficking, testified that he had worked with the Paris Police Department for twenty-one years. Foreman attended a two-week basic narcotics investigation school; had been to laboratory school; participated in continuing education every two years; had eighteen years’ experience working narcotics with the ATF, DEA, and FBI; and had been the lead officer on federal criminal conspiracy to distribute drug cases. Foreman explained that, although there is no particular formula, the totality of the circumstances determines whether a person is a dealer or user. Foreman stated that users usually have a smaller quantity of drugs in their possession because “[t]hey can’t fight the urge to use what they have. They usually have a lot of paraphernalia[5] on them.” For example, Foreman stated, “[Y]ou could comfortably get five uses out of one gram [of methamphetamine,]” and he likened one gram to one artificial sweetener package.[6] According to Foreman, a sixteenth of a gram or less would be a user quantity. In addition, Foreman explained that, in this case, the drugs were “two large rocks.” In his opinion, the “rocks” were to be broken down to be put into baggies and then sold. Foreman also explained that there were twenty-eight grams in one ounce of methamphetamine. The two pieces of methamphetamine that Biggers tossed away weighed about one-half ounce each. Foreman stated, “By the quantity that [Biggers] threw down there is not any doubt in my mind that’s a dealer quantity.” “I’ve never, in 21 years, seen that to be a user quantity. I think it’s totally unbelievable to be so.” According to Foreman, methamphetamine was the drug of choice in Lamar County, and it was far more prevalent than cocaine and heroin. Moreover, Foreman testified that the area in which Biggers was arrested was a high drug-trafficking area and was also within 1,000 feet of a drug-free zone. The State also offered, and the trial court admitted, a Texas Department of Public Safety laboratory report that showed that one of the pieces of methamphetamine weighed 11.68 grams. When Foreman was asked if it was unusual for the lab not to weigh both “rocks,” he responded that it was not. He then explained, “[T]heir policy is they test enough to reach the highest level that they can. Once they see it won’t reach the next level, they quit testing it.” Here, Foreman was charged with the offense of possession with the intent to deliver more than four grams, but less than 200 grams, of methamphetamine. Discussion The Use of Biggers’s Prior Conviction to Enhance Punishment Was Not Error Maintaining that Biggers was a repeat offender, the State alleged in the indictment’s enhancement paragraph the following: “And, it is further presented that, prior to the commission of the charged offense on August 14, 2015, in Cause No. CF-2014-00069 in the Court of Choctaw County, Oklahoma, the defendant was finally convicted of the felony offense of Possession of a Controlled Substance.” During the punishment phase of the trial, the trial court asked Biggers how he was pleading to the enhancement, to which Biggers stated, “True, Your Honor.”[7] After waiving its opening statement, the State offered Exhibits 13 and 14, which the State identified as “[t]wo certified judgments and sentences from Choctaw County[,] one being the enhancement paragraph and the other being from another offense.”[8] Biggers did not object to the admission of either exhibit. Yet, he maintains on appeal that his Oklahoma conviction was improperly used to enhance his punishment to life in prison. We disagree. To the extent that Biggers complains of the admission of Exhibit 13, his failure to object at trial results in a waiver of the issue on appeal. When a defendant wishes to complain on appeal about the admission of a prior conviction as evidence during the punishment phase of the trial, he must make a timely objection to the evidence. Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim. App. 1986) (orig. proceeding) (op. on reh’g) (citing Ex parte Ramirez, 577 S.W.2d 261 (Tex. Crim. App. [Panel Op.] 1979) (orig. proceeding)). “Even when the prior conviction was uncounselled, a timely objection is necessary to preserve error.” Id. (citing Aldrighetti v. State, 507 S.W.2d 770 (Tex. Crim. App. 1974). Biggers did not object to the admission of State’s Exhibit 13. To the extent that Biggers contends that the enhancement paragraph contained error, he has likewise waived that issue. In Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998) (orig. proceeding), the Texas Court of Criminal Appeals stated, Because the indictment for the new offense relied on this conviction to enhance, the indictment contained a cognizable defect and was voidable. The enhancement portion of the indictment was subject to being voided by compliance with the applicable rules of procedural default. As discussed above, the applicable rules for procedural default for indictments set out in Article 1.14(b) of the Code of Criminal Procedure require a defendant to object to any defects of substance or form in the charging instrument prior to the day of trial. Applicant’s failure to object to the error in the enhancement portion of the indictment waived the error by procedural default. Id. at 19–20. Even assuming, without finding, that the language in the enhancement paragraph of the indictment was defective, Biggers has waived any issue regarding the substance of the indictment because of his failure to bring it to the trial court’s attention. Biggers also relies on a sufficiency argument, that is, that there was insufficient evidence to support the State’s assertion that Biggers had been convicted in Oklahoma of a felony offense other than a state jail felony because the Oklahoma judgment omitted (1) language regarding the specific statute upon which he was convicted, (2) the type of illegal substance involved, and (3) the amount of drugs involved. As a result, according to Biggers, “it was impossible to identify the conviction as a qualifying felony under Texas Penal Code § 12.42.” (Emphasis added). Contrary to Biggers’s assertion, we have found no requirement mandating that any or all of that information be included in an out-of-state judgment in order for the State to use it for enhancement purposes. Moreover, the judgment against Biggers shows that he had been convicted of two counts of possession of a controlled dangerous substance in Oklahoma and was sentenced to four years in the Oklahoma Department of Corrections.[9] In almost all circumstances, the only way a defendant could receive a four-year sentence of imprisonment in Texas is if he had been convicted of at least a third-degree felony.[10] Biggers points out, however, that, “under Texas law,[11] the fact that an offense receives a certain punishment does not necessarily mean that it is the punishment inherently connected to that offense. Texas has a myriad of punishment enhancements based upon prior criminal history.” In other words, Biggers maintains that the fact that he was ordered to serve a four-year sentence on the Oklahoma drug conviction does not necessarily mean that he had been convicted of a “qualifying felony.” Yet, Biggers’s assertion is not relevant to our analysis in this case. Section 12.42(c) of the Texas Penal Code states that punishment for a first-degree felony offense can be enhanced to life imprisonment if it is shown at trial that “the defendant has previously been finally convicted of a felony other than a state jail felony . . . .” TEX. PENAL CODE ANN. § 12.42(c). In addition, the Texas Penal Code states, ny conviction not obtained from a prosecution under this [C]ode shall be classified as follows: “felony of the third degree” if imprisonment in the Texas Department of Criminal Justice or another penitentiary is affixed to the offense as a possible punishment; “Class B misdemeanor” if the offense is not a felony and confinement in a jail is affixed to the offense as a possible punishment; “Class C misdemeanor” if the offense is punishable by fine only. TEX. PENAL CODE ANN. § 12.41(1)–(2) (emphasis added). The Texas Court of Criminal Appeals has stated that “penitentiary” refers to facilities run by the Texas Department of Corrections, that is, a facility run by the State of Texas, as opposed to a “county jail run by the local sheriff.”[12] Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990) (Clinton, J., concurring) (quoting Williamson v. State, 676 S.W.2d 428, 430 (Tex. Crim. App. 1984) (per curiam), (Clinton, J., dissenting)). Black’s Law Dictionary defines “penitentiary” as “[a] correctional facility or other place of long-term confinement for convicted criminals; PRISON.” Penitentiary, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, we must determine here whether Biggers’s out-of-state conviction led to confinement in an Oklahoma penitentiary or state prison. If it did, then the conviction would be classified in Texas as a felony for enhancement purposes. The State presented a witness with personal knowledge of Biggers’s Oklahoma drug conviction. Chad Allen, who is a law enforcement officer for the Hugo, Oklahoma, Police Department, testified that he had been the officer who arrested Biggers for the drug possession charge. Allen stated that Biggers had been in possession of methamphetamine, marihuana, and Xanax.[13] According to Allen, “Biggers was convicted and sent to an Oklahoma prison on that case.” Allen also explained that, when Biggers was sentenced to prison for the drug conviction, he was also sentenced as a result of a conviction for burglary, which, according to Allen, was a second-degree felony.[14] Moreover, the judgment of conviction in that case shows that Biggers was sentenced to four years “[u]nder the custody and control of: (X) Oklahoma Department of Corrections, concurrent with Choctaw County CF-2014-69[, the sentence for two counts of drug possession]. Because Biggers was convicted of two counts of possession of dangerous drugs and was sentenced to an Oklahoma state prison, as opposed to a county jail, his conviction constituted at least a “felony of the third degree” pursuant to Section 12.41(a) of the Texas Penal Code and was appropriately used for enhancement purposes. Accordingly, no error occurred. We overrule Biggers’s first point of error. There Was Sufficient Evidence of Biggers’s Intent to Deliver In his second point of error, Biggers contends that there was insufficient evidence to show his intent to deliver. In evaluating legal sufficiency in this case, we must consider all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found, beyond a reasonable doubt, that Biggers was guilty of the offense of manufacture or delivery of methamphetamine. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 433 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). We afford almost total deference to a jury’s credibility determinations. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). An appellate court “may not re-evaluate the weight and credibility of the . . . evidence” or “substitute [its] judgment for that of the fact-finder.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1990)). Further, “[c]ircumstantial evidence is as probative as direct evidence,” and it can be sufficient alone in establishing guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 241 S.W.3d at 13. “Evidence is legally insufficient when the ‘only proper verdict’ is acquittal.” Nelson v. State, 405 S.W.3d 113, 122 (Tex. App—Houston [1st Dist.] 2013, pet. ref’d) (quoting Tibbs v. Florida, 457 U.S. 31, 41–42 (1982)). Finally, legal “sufficiency of the evidence should be measured by the elements of the offense as defined by a hypothetically correct jury charge.” Malik v. Sate, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “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. “[A] person commits an offense if [he] knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance,” such as methamphetamine.[15] TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); see Talley v. State, 909 S.W.2d 233, 234 (Tex. App.—Texarkana 1995, pet. ref’d). Here, the indictment stated that, “on or about February 24, 2018[,] in Lamar County, Texas, anterior to the presentment of [the] Indictment, [Biggers] did then and there knowingly possess, with intent to deliver, a controlled substance, namely Methamphetamine, in an amount of four grams or more but less than 200 grams.”[16] The State has the burden of proving Biggers’s intent to deliver the methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112. Intent to deliver may be established by circumstantial evidence. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Expert testimony by experienced law enforcement officers may be used to show intent to deliver. Mack v. State, 859 S.W.2d 526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.). In addition, the following factors are relevant to the question of intent to deliver: “(1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant’s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia . . . ; (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a drug user.” Williams, 902 S.W.2d at 507. “The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.” Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Even so, more facts than mere presence near the drugs is required, particularly when there are many people present or in possession of the premises. Estrada v. State, 643 S.W.2d 753, 756 (Tex. App.—San Antonio 1982, no pet.). As we understand his complaint, Biggers maintains that “the State only proved possession of 11.68 grams of methamphetamine.”[17] Thus, according to Biggers, the State merely “established a smaller amount . . . than discussed by the witnesses, which does not support the opinion testimony [of the officers].” Yet, Biggers’s recitation of the facts is flawed. First, Biggers seemingly argues that the evidence regarding the weight of the drugs was restricted to the laboratory report showing that the methamphetamine weighed 11.68 grams. To the contrary, while the State presented testimony regarding the amount of the drugs via the report, it also offered photographs of the drugs and elicited testimony from at least two witnesses regarding the amount of the drugs. The jury was clearly aware of the fact that one “rock” weighed 11.68 grams; however, there was also evidence that Biggers had been in possession of a second “rock,” which was similar in size to the “rock” that weighed 11.68 grams. In addition, both officers gave examples of how much methamphetamine a person would ingest if he were using the drug as opposed to selling it. Foreman indicated that a user could comfortably get five uses out of one gram of methamphetamine. The evidence showed that Biggers was in possession of at least 11.68 grams of methamphetamine, and both officers testified that, in their opinions, the quantity of drugs in Biggers’s possession—whether it was 11.68 grams or almost twice that—was not a user amount, but a dealer amount. Biggers was also arrested in what was described as a high-crime neighborhood, which included areas where illegal drug transactions occurred, with the buying and selling of methamphetamine being almost rampant. As to the manner of packaging, the methamphetamine was not packaged, which could lead a person to believe that it was only intended for Biggers’s use. That said, Foreman testified that the amount of methamphetamine was so large that he believed the pieces were to be broken up and then placed in baggies to be sold later. Likewise, Biggers was not found to be in possession of any drug paraphernalia, which, according to Foreman, was evidence that Biggers was not intending to use the drug but, instead, had it in his possession for the purpose of distributing it. Biggers maintains that the jury’s consideration of this fact was a violation of his constitutional rights. Specifically he states, “Considering the absence of drug paraphernalia by Biggers, alone, as evidence that Biggers intended to deliver methamphetamine is unconstitutional burden shifting in violation of the Fifth and Fourteenth Amendments.” (Emphasis added). Contrary to Biggers’s argument, the State presented additional evidence—as we have discussed above—to support its allegation that Biggers intended to deliver the methamphetamine. While there was no evidence that Biggers was in possession of cash or whether he used drugs, “[t]he number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.” Gilbert, 874 S.W.2d at 298. We find that the evidence presented by the State was sufficient to support the jury’s determination that Biggers possessed the methamphetamine with the intent to deliver it. We overrule Biggers’s second point of error. IV. Conclusion For these reasons, we affirm the trial court’s judgment. Scott E. Stevens Justice Date Submitted: June 1, 2021 Date Decided: October 14, 2021 Publish
