Campbell v. State

• Decision Date: 16 January 1992
• Docket Number: No. A14-90-00928-CR,A14-90-00928-CR
• Parties: Robert CAMPBELL Jr., Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 776

822 S.W.2d 776

Robert CAMPBELL Jr., Appellant, v. The STATE of Texas, Appellee.

No. A14-90-00928-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 16, 1992.

Rehearing Denied March 5, 1992.

James R. Reed, Houston, for appellant.

Calvin A. Hartmann, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

Appellant entered plea of not guilty before the court to the offense of possession of a controlled substance, namely cocaine. TEX.HEALTH & SAFETY CODE ANN. § 481.115(b). He was convicted and the court assessed punishment at imprisonment for eight years. We reverse and render.

On June 22, 1990, Houston police officer, R.P. Tewelet, received a dispatch about a family disturbance at 3802 Lila # 2, in Harris County. Upon his arrival at that location, Officer Tewelet found appellant sitting outside the residence drinking alcohol. The officer talked briefly with appellant's common law wife, who complained of being assaulted. After observing appellant, Officer Tewelet decided to arrest him for public intoxication. During a pat-down search of appellant, Officer Tewelet discovered a matchbox in appellant's front left pants pocket. The matchbox was later tested by an HPD chemist and found to contain 0.6 milligrams of cocaine. The indictment alleges that appellant "intentionally and knowingly possessed a controlled substance, namely, cocaine weighing less than 28 grams by aggregate weight including any adulterants and dilutants."

In his sole point of error, appellant contends that there is insufficient evidence to show that he knowingly possessed cocaine because there was no visible cocaine in the matchbox he possessed when arrested.

The standard for reviewing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Where an accused is charged with unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). There is no "bright line" amount of a controlled substance that establishes knowing possession. If the amount of a controlled substance seized from a defendant can be seen and measured, it is sufficient to establish that the defendant knew it was a controlled substance. Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983); Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd).

The only evidence before the court was appellant's stipulations of evidence and the lab analysis. There is no testimony by the arresting officer or the chemist that the cocaine residue contained in the matchbox was visible to the naked eye. See Jarrett v. State, 818 S.W.2d 847 (Tex.App.--Houston [1st Dist.], 1991). Appellant's stipulation of evidence designated as State's Exhibit No. 2 states that the chemist "examined the evidence in this case and identified it as cocaine weighing 0.6 milligrams." (Emphasis added). The State contends that the residue must have been visible for the chemist to be able to examine it. However, there is nothing in the record to show that the chemist examined the residue without a microscope. See Pelham v. State, 164 Tex.Crim. 226, 298 S.W.2d 171, 173 (1957). That the record is silent as to whether a microscope was used does not, contrary to the State's assertion, mean that the residue was visible. The State has the burden to present evidence that affirmatively links the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he or she exercised control of it. Rodriguez v. State, 635 S.W.2d 552, 553 (Tex.Crim.App. [Panel Op.] 1982). Here, the State has failed to carry its burden.

We are aware of our holding in Chavez v. State, 768 S.W.2d 366 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd), where we found that 0.5 milligrams of cocaine was sufficient to establish knowing possession. There, however, the cocaine was observed by the arresting officer without the need of a microscope and was quantitatively measured. 768 S.W.2d at 368. Also, the defendant was in possession of a firearm at the time of his arrest and the cocaine was discovered in a plastic baggie which the officer testified is the type of bags commonly used to carry cocaine. Id. None of those circumstances are present here. Viewing the evidence in the light most favorable to the prosecution, we hold that rational trier of fact could not have found that appellant knowingly possessed cocaine. We sustain appellant's sole point of error. Accordingly, we reverse appellant's conviction and direct the court below to enter a judgment of acquittal.

MURPHY, Justice, dissenting.

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