A Conroe man convicted in 2009 of selling crack cocaine to a an undercover drug buyer will be released from prison because the evidence used to convict him was legally insufficient, an appeals court has ruled.
Curtis Ray King, 33, received a 20-year prison sentence after a jury found him guilty of delivery of a controlled substance stemming from a drug sale in May 2008. But the 9th state Court of Appeals reversed King’s conviction Wednesday, acquitting him because there wasn’t strong enough corroboration of testimony from a confidential informant who made a drug buy and named King as the seller.
King will be released from prison, said Bert Steinmann, a Woodlands attorney who represented King through the appellate process. He doesn’t know, however, how long it will take to release King.
“I would assume as soon as it’s turned over to the District Attorney’s Office, they will start the paperwork,” Steinmann said.
He had not been able to contact King Wednesday following the appellate court’s acquittal.
Because the decision was an acquittal and not remanded back to the 284th state District Court, where King was convicted, King cannot be retried for that charge, Steinmann said.
Justice Charles Kreger wrote the majority opinion, while Justice David Gaultney dissented.
The informant entered into a contract to work with the Montgomery County Sheriff’s Office Special Investigations Unit following his release from jail for drug and theft convictions. He agreed to work under the direction of SIU Sgt. David Womack and furnish information leading to the arrest and indictment of eight controlled substance cases.
The informant gave Womack several names, but Womack could not recall during King’s trial whether King was one of those names, according to Kreger’s opinion.
During a narcotics buy in Conroe’s Dugan area, Womack and other officers met the informant to provide money for the buy and placed a recording device in his shirt pocket. While they followed the informant to Dugan, they did not follow him to the transaction location for fear of being recognized, Womack testified.
When the informant returned with several rocks of crack cocaine, Womack listened to the audiotape of the transaction. He testified that he heard the informant ask the name of the seller, and the seller responded, “Blue.”
Womack then pulled up eight to 12 mug shots of people in the MCSO’s system, also known as Blue, and Scott identified one of the photos as that of the seller. Womack testified that King went by the alias “Blue” and obtained a warrant for his arrest.
But Womack was never asked during King’s trial whether the photograph identified by Scott was King, and defense attorneys objected to Womack’s testimony that Scott identified the photograph as being King because it was hearsay.
However, the defense didn’t ask the court to instruct the jury to disregard that testimony, according to Kreger’s opinion.
“The corroborating evidence in this case is limited,” Kreger wrote in his opinion. “Sergeant Womack is the only witness other than (the informant), who testified regarding the drug transaction. Viewing the evidence in the light most favorable to the verdict, the corroborating evidence establishes, at most, only that someone who goes by the alias ‘Blue’ sold (the informant) the cocaine, and that King goes by the alias ‘Blue.’”
With that kind of evidence, Steinmann said, “Basically, you can convict anyone of anything. I think the lawyers who defended him were very successful ... on preserving trial error points on appeal.
“There are certain standards required to convict, and cases like these remind us of those standards, so we don’t end up with innocent people in jail.”