Opinion
No. 11-05-00237-CR
December 14, 2006. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 161st District Court, Ector County, Texas, Trial Court Cause No. B-31,294.
Panel consists of: WRIGHT, C.J., MCCALL, J., and STRANGE, J.
OPINION
William Tryon was indicted on February 17, 2004, for possession of cocaine of one gram or more but less than four grams. A jury found appellant guilty and assessed punishment at eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant complains that the evidence was legally and factually insufficient to establish appellant's identity as the perpetrator of the charged offense. We affirm. On December 18, 2003, at approximately 1:30 p.m., law enforcement officials executed a search warrant at a house located at 604 Elliott in Odessa. Prior to the execution of the search warrant, the police officers conducted surveillance of the residence for approximately twenty-four hours. Upon entering the house, police officers found appellant along with a female and some children in the residence. The officers told appellant and the female to get on the floor. Officer Josh Greggory testified that, once appellant was on the floor, he observed appellant throw a small, clear plastic bag using his right hand. After determining the bag contained marihuana, the police officers arrested appellant. The officers searched appellant and found a plastic bag containing several white rocks in his front pocket. The officers performed a field test, and the results of that test confirmed that the white rocks were cocaine. Appellant was charged with possession of cocaine. Appellant was the only person arrested as a result of the execution of the search warrant. During trial, when the indictment was read, appellant entered a plea of not guilty. The indictment named defendant "William Tryon." The State introduced into evidence a cable bill, retrieved from a kitchen drawer during the search, addressed to William Tryon, 604 Elliott, Odessa, Texas 79763. Detective Scottie Smith testified that the only person in the residence with whom he dealt was appellant. After the State rested, counsel for appellant filed a motion for instructed verdict asserting that the State failed to prove beyond a reasonable doubt that appellant was the person who perpetrated the charged offense and whom the police officers arrested upon executing the search warrant. The trial court overruled the motion. A reviewing court should treat a point of error complaining of the trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the record in the light most favorable to the trial court's verdict and determine whether, based upon that evidence and all reasonable inferences therefrom, any rational trier of fact could have found that appellant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex.Crim.App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11. Both the legal and factual sufficiency standards are applied to direct and circumstantial evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000); Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). The jury is the sole judge of the weight and credibility of the witnesses' testimony, and due deference must be given to the jury(s determination. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8-9. The jury verdict names appellant as the person found guilty, and he was the only person being prosecuted for the alleged offense. Appellant entered a plea of not guilty when the indictment, which contained his name and the allegations against him, was read in court. The cable bill entered into evidence contained appellant's name and address, which was the same address for which the search warrant was issued. We do not believe that there was any possible confusion in the identification of appellant as the person arrested by the police or the person charged with possession of cocaine on the day and at the residence where the search warrant was executed. Rohlfing v. State, 612 S.W.2d 598, 601 (Tex.Crim.App. 1981) (holding that witness's identification of the defendant as "the man in court wearing an orange shirt and a light beige/tan leisure suit" to be sufficient identification). We hold, under the facts of this case, that the evidence is both legally and factually sufficient to establish appellant's identity as the alleged criminal perpetrator. Both of appellant(s issues are overruled. The judgment of the trial court is affirmed.
A grand jury indicted William Tryon for possession of cocaine of one gram or more but less than four grams. When the case was called for trial, the State presented the indictment and read Tryon's full name, William Henry Tryon, Jr., to the jury. The State had filed a motion to amend the indictment to show Tryon(s full name, but we cannot tell from the record whether the trial court ever acted upon the motion.