Alford Lee Carter, Jr. v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE
TENTH COURT OF APPEALS

No. 10-98-129-CR

ALFORD LEE CARTER, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

From the 87th District Court
Freestone County, Texas
Trial Court # 97-190-CR

O P I N I O N
Alford Lee Carter, Jr., was convicted of delivery of a controlled substance and 
sentenced to eighteen months in prison. Rejecting his assertion that the evidence 
is factually insufficient to support the verdict, we will affirm the judgment.

FACTS
Don Sylvest, a deputy sheriff with Freestone County, testified that Phylis Gibson 
worked undercover with the Sheriff s department in return for leniency on a motion 
to revoke her probation. Gibson would make purchases of cocaine from various
dealers while officers watched and often recorded the exchange of money for drugs.

Both Sylvest and Gibson testified that, on August 15, 1997, Gibson met with Sylvest, 
who instructed her to buy cocaine from Carter. Sylvest did a preliminary search 
of Gibson, made sure she was not carrying any contraband, and gave her a pickup 
truck to drive. Gibson was wired so that Sylvest could hear the exchange, and a 
video camera was hidden in the back of the pickup. The video camera was positioned 
to take pictures of the driver's side of the truck.

Once Gibson arrived at the location where she was supposed to buy cocaine, she 
stopped and waited in the truck. The video tape shows that a man approached the 
driver's door and the audio reveals that he asked, Do you want a 20? // Gibson 
and Sylvest both testified that this man was Carter. In response, Gibson gave 
Carter twenty dollars. Carter was working with another man named Gary McQuirter, 
a.k.a. Bam, who was suspicious of Gibson and repeatedly asked her questions. 
Gibson finally got out of the truck and walked outside the view of the video 
camera. She returned to the truck with the cocaine. Whether McQuirter or Carter 
handed her the drugs is a disputed fact.

FACTUAL SUFFICIENCY

In conducting a factual-sufficiency review, we examine all of the evidence 
impartially, and set aside the verdict only if it is so contrary to the overwhelming 
weight of the evidence as to be clearly wrong and unjust. Cain v. State, 
958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 
(Tex. Crim. App. 1996). The jury is the judge of the facts and we will defer to 
the jury, finding the evidence factually insufficient only where necessary to 
prevent manifest injustice. Cain, 958 S.W.2d at 407.

Gibson made contradicting statements about whether Carter or McQuirter handed the 
drugs to her. Relying on this contradiction, Carter argues that the verdict is 
contrary to the weight of the evidence. He asserts that, because Gibson testified 
that McQuirter actually handed the drugs to her, the evidence does not support 
his conviction. To the contrary, even assuming that Carter did not physically 
deliver the drugs to Gibson, the evidence is sufficient to support a verdict 
against him under the law of the parties as charged to the jury.

The pertinent portion of the charge reads:

Now if you find from the evidence beyond a reasonable doubt that the defendant 
Alford Lee Carter Jr., on or about the 15th day of August, 1997, in Freestone 
County, Texas, did then and there intentionally or knowingly deliver, by actual 
transfer to Phylis Gibson or by constructive transfer // from Gary McQuirter 
aka Bam to Phylis Gibson, a controlled substance namely cocaine in an amount 
including adulterants and dilutants less than one gram then you will find the 
defendant guilty of the offense of Delivery of Controlled Substance namely cocaine 
under one gram, or

If you find from the evidence beyond a reasonable doubt that on or about August 
15, 1997 in Freestone County, Texas, Gary McQuirter aka Bam did intentionally or 
knowingly deliver a controlled substance by actual transfer to Phylis Gibson 
namely cocaine of an aggregate weight including any adulterants or dilutants under 
one gram, and the defendant Alford Lee Carter Jr. in the course of such delivery, 
if any, did then and there with intent to promote or assist such delivery, if any, 
from Gary McQuirter aka Bam to Phylis Gibson, aid, solicit, or encourage Gary 
McQuirter aka Bam to commit said offense, if any, by taking an order for said 
cocaine, if any, from Phylis Gibson, or by delivering money obtained from Phylis 
Gibson to Gary McQuirter aka Bam for the purchase of said cocaine, if any, then 
you will find the defendant Alford Lee Carter Jr. guilty of the offense of Delivery 
of a Controlled Substance, namely cocaine, of an aggregate weight including of 
any adulterants and dilutants less than one gram.

Both Gibson and Sylvest testified that Carter took Gibson s order for cocaine as 
well as the money to purchase it and gave the money to McQuirter for the purchase. 
This evidence is uncontroverted. Considering all the evidence, we cannot say that 
the verdict is so contrary to the overwhelming weight of the evidence as to be 
manifestly unjust. Clewis, 922 S.W.2d at 129. The evidence is factually sufficient 
to support the verdict. Issue one is overruled.

The judgment is affirmed.

BILL VANCE
Justice

Before Chief Justice Davis,
Justice Vance, and
Justice Gray

Affirmed

Opinion delivered and filed January 27, 1999