Chisum v. State

• Decision Date: 12 May 1999
• Docket Number: No. 06-98-00172-CR,06-98-00172-CR
• Parties: Russell Isom CHISUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 244

988 S.W.2d 244

Russell Isom CHISUM, Appellant, v. The STATE of Texas, Appellee.

No. 06-98-00172-CR.

Court of Appeals of Texas,

Texarkana.

Argued Nov. 3, 1998.

Decided Nov. 19, 1998.

Rehearing Overruled Jan. 12, 1999.

Discretionary Review Refused May 12, 1999.

Gaylyn Leon Cooper, H. Scott Alexander, Bernsen, Jamail, & Goodson, Beaumont, for appellant.

Rodney D. Conerly, Asst. Dist. Atty., Beaumont, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

ROSS, Justice.

Russell Chisum appeals from his conviction for possession of a controlled substance. He contends that the evidence was legally and factually insufficient to convict and that the court abused its discretion by admitting expert testimony over his objection, by denying his request to voir dire the expert outside the presence of the jury, and by refusing to permit him to reopen and admit a "Trial Procedure Order" into evidence.

Chisum was arrested at his home and charged with possession of between four and 200 grams of cocaine. The cocaine was found during a search of his home and pickup truck. He was convicted in a jury trial, and the jury assessed punishment at forty years' imprisonment and a $5,000.00 fine.

In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Webb v. State, 801 S.W.2d 529, 530 (Tex.Crim.App.1990). If we determine that the evidence was legally sufficient, we then review factual sufficiency, reviewing all of the evidence without the prism of "in the light most favorable to the prosecution." We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

A person may not be convicted of possession of a controlled substance unless there is sufficient evidence to raise a reasonable inference that the person knew of the contraband's existence and exercised actual care, custody, control, or management over it. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 1992); Kyte v. State, 944 S.W.2d 29, 31-32 (Tex.App.-Texarkana 1997, no pet.); Fields v. State, 932 S.W.2d 97, 103 (Tex.App.-Tyler 1996, pet. ref'd).

A defendant charged with intentionally and knowingly possessing drugs must be affirmatively linked with the drugs he allegedly possessed. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App.1995). Possession and control of drugs need not be exclusive but may be joint. White v. State, 890 S.W.2d 131, 138 (Tex.App.-Texarkana 1994, pet. ref'd) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986)). "[W]hen an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Cude, 716 S.W.2d at 47; Ebert v. State, 848 S.W.2d 261, 266 (Tex.App.-Corpus Christi 1993, no pet.).

In this case, the evidence shows that Chisum owns the house in which the drugs were found, but also shows that a woman was or had been very recently living there. The officer who conducted the search testified about the large amount of women's clothing found in one of the bedrooms and testified that he was aware that a woman had been living with Chisum, but that he did not know her name. Thus, it is clear that Chisum was not in exclusive possession of the house at the time of the search, and we may not conclude that he had knowledge and control over the contraband unless additional independent facts and circumstances affirmatively link him to the contraband. Brazier v. State, 748 S.W.2d 505, 508 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).

Factors to be considered when evaluating affirmative links include: 1) the defendant's presence when the search was executed; 2) whether the contraband was in plain view; 3) the defendant's proximity to and the accessibility of the contraband; 4) whether the defendant was under the influence of a controlled substance when arrested; 5) whether the defendant possessed other contraband when arrested; 6) whether the defendant made incriminating statements when arrested; 7) whether the defendant attempted to flee; 8) whether the defendant made furtive gestures; 9) whether there was an odor of the contraband; 10) whether other contraband or drug paraphernalia was present; 11) whether the defendant owned or had the right to possess the place where the drugs were found; and 12) whether the place the drugs were found was enclosed. Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd).

The record shows the following circumstances concerning the search of Chisum's premises and his connection to the contraband: (1) Chisum was not present when the warrant was executed, but was brought to the premises while the search was in progress; (2) the contraband was not in plain view, but was hidden in Marlboro cigarette boxes in a utility closet; (3) Chisum was not found close to the contraband; (4) Chisum was not "under the influence" when arrested; (5) Chisum had no contraband on his person; (6) Chisum stated at the time of his arrest that the cigarette boxes of contraband did not belong to him, but that they belonged to his brother Eugene and that his brother made him sell them; (7) Chisum did not attempt to flee; (8) Chisum made no furtive gestures; (9) there was no odor of the contraband; (10) there is no evidence about other types of contraband or drug paraphernalia; (11) Chisum both owned and had the right to possess the house; and (12) the contraband was found in an enclosed place.

At trial, Chisum testified that he permitted Angela Schmidt and her two children to live with him for a short time, and that he had caught her using cocaine and threw her out of the house. He testified that he took her key, but she was able to return to the house by using a duplicate key. He testified that she smoked Marlboro Light cigarettes. Most of the cocaine found during the search was packaged in Marlboro Light cigarette boxes. Chisum contends that Schmidt was angry with him for throwing her out of the house, planted the contraband on his premises, and then acted as an informant and told the police that the cocaine was in his house. There is also testimony that Chisum directed the officers to another cigarette package containing cocaine that was in an old pickup truck in his driveway.

In summary, the evidence shows that Chisum owned the house and was living there, that he was aware that the contraband was in the house, and that he admitted selling it for his brother. When viewed in the light most favorable to the verdict, these affirmative links make the evidence legally sufficient to support the verdict. When viewed without the prism of "in the light most favorable to the State," the evidence that might exonerate Chisum does not rise to such a level as to permit this Court to find that the conviction is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence is factually sufficient to support his conviction.

Chisum contends that the court abused its discretion by admitting expert testimony about the nature of the alleged contraband over his objection and also by refusing his request to voir dire the expert outside the presence of the jury. The State presented the testimony of Charleen Voight as an expert to prove the weight and chemical composition of the substances recovered from the house and pickup truck. Chisum argues here as he did at trial that the State failed to make the necessary Rule 702 showing that would permit the admission of scientific expert testimony as is required by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). ¹

In Jordan v. State, 928 S.W.2d 550 (Tex.Crim.App.1996), the Texas Court of Criminal Appeals explicitly adopted the Daubert standards applying Rule of Evidence 702. ² In Jordan, it was noted that before the Supreme Court wrote Daubert, the Texas Court of Criminal Appeals had already adopted the same requirements, in virtually the same language, in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). ³ The court also stated in Kelly that the decision as to whether these requirements have been met should be made outside the presence of the jury before the evidence is admitted. Kelly, 824 S.W.2d at 573.

In this case, counsel for Chisum filed a pretrial motion requesting the court to conduct a hearing to qualify expert witnesses pursuant to Rules 702 and 703 and urged the request again during trial, before Voight testified. The trial court denied Chisum's requests, and he was then forced to make his challenge to the witness' expertise and the scientific basis of her tests on voir dire examination in the presence of the jury. Counsel then argued on Daubert grounds that the State had not met its burden of proving the reliability of the scientific evidence used to establish that the confiscated substance was cocaine.

The trial court erred by refusing to hold the gatekeeper hearing as requested and as required by Kelly/Daubert. The remaining question is whether harm is shown by this error, requiring reversal.

The trial court's task in assessing admissibility under Rule 702 at the gatekeeper hearing is to determine whether the scientific evidence is both sufficiently reliable and relevant to help the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex.Crim.App.1997).

In determining reliability, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific...