Cooper v. State
| Decision Date | 22 March 1990 |
| Docket Number | No. 01-89-00319-CR,01-89-00319-CR |
| Citation | 788 S.W.2d 612 |
| Parties | Vaughn Mario COOPER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Randy Schaffer, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Katherine Haden and Shane Phelps, Asst. Dist. Attys., for appellee.
Before EVANS, C.J., and COHEN and HUGHES, JJ.
This is an appeal from a conviction for possession of less than 28 grams of a controlled substance, namely cocaine. The appellant was found guilty, and the jury found the allegations of the two enhancement paragraphs to be true. Punishment was assessed at 40 years confinement.
We affirm.
On November 28, 1988, two Houston police officers stopped a Pontiac Trans Am for weaving in and out of its lane. Curtis Shoulders was driving, and the appellant was sitting in the front passenger's seat. The police observed a club fastened to the driver's belt when he stepped out of the car. The club was placed in the back seat of the driver's car while the officers tested the sobriety of the driver. After determining that the driver was not intoxicated, the police permitted him to get back in his car.
The officers determined at that point that the club was illegal, and decided to arrest the driver. They asked the driver to step out of the car, and then one of the officers shined his light into the car and observed the handle of a gun between the console and driver's seat. The appellant was removed from the car, because of his proximity to the weapon. As the appellant stepped out, one officer shined his flashlight into the car and observed a clear plastic bag lying in the passenger's seat. The bag contained a powder substance, and the appellant was placed under arrest. The officers found $1,100 in cash in the appellant's pocket.
After the arrests, the officers discovered a knife contained inside the club. The police also found a switchblade when they removed the gun from the car. The owner of the car was the appellant's wife, who allowed Curtis Shoulders to drive the car on occasion. An attempt had been made to insure the appellant as a driver of the car without his knowledge. However, the appellant did not have a driver's license.
The appellant complains, in his first point of error, that there was insufficient evidence to establish that he intentionally or knowingly possessed cocaine. In reviewing this complaint, we are required to consider 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, 2789, 61 L.Ed.2d 560 (1979).
To establish a defendant's unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised care, custody, and control over the substance; and (2) the accused knew that the substance possessed was contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981).
It is not necessary to prove that the accused had exclusive possession of the narcotics. Damron v. State, 570 S.W.2d 933, 934-35 (Tex.Crim.App.1978). But, if the proof does not show that the accused was in exclusive control of the premises where the substance was found, the State must offer additional independent facts and circumstances that affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188, 190 (Tex.Crim.App.1978).
An affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Deshong, 625 S.W.2d at 329. Facts that establish an affirmative link include the following examples: the narcotic was conveniently accessible to the accused, Hahn v. State, 502 S.W.2d 724, 725 (Tex.Crim.App.1973); and the contraband was found on the same side of the car where the accused was sitting, Orosco v. State, 164 Tex.Crim. 257, 298 S.W.2d 134, 136 (1957).
The appellant's theory was that the officers planted the cocaine in the car. The appellant testified the officers arrested him, searched him, placed him in the police car, and resumed searching the Pontiac. After five minutes, they returned and told the appellant that they found cocaine. The appellant claimed he did not know of the presence of the cocaine until the police informed him about it. The appellant further explained that he won the cash found in his pocket at the horse races.
However, an officer testified that he observed the bag of cocaine lying in the car seat as the appellant stepped out of the car. The officer testified as follows:
The door was already opened when he stepped out of the vehicle. I shined my light inside the vehicle and I observed that clear plastic bag lying with that powdery substance in it on the seat where he was seated.
* * * * * *
The drugs I referred to were right about here (indicating) toward the back of the seat where my finger is.
The officer also testified that the cocaine was on the same side of the car where the appellant was sitting. A console separated the two bucket seats in the vehicle. Therefore, the cocaine was conveniently accessible to the appellant. Cf. Hahn, 502 S.W.2d at 725.
A jury is entitled to accept one version of facts and reject another, or to reject any or all of a witness' testimony. Speaker v. State, 740 S.W.2d 486, 490 (Tex.App.--Houston [1st Dist.] 1987, no pet.). Conflicts in the testimony presented issues of fact and credibility for the jury to decide, not this Court. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). After reviewing the evidence, we find that a rational trier of fact could have found that the appellant exercised care, custody, and control over the cocaine.
The appellant's first point of error is overruled.
In his second, fifth, and sixth points of error, the appellant complains of arguments made by the prosecutor during summation.
The areas of permissible jury argument encompass the following four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App.1987).
Error occurs when facts not supported by the record are interjected. However such error is not reversible, unless, viewing the record as a whole, we can conclude the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial. Cannon v. State, 668 S.W.2d 401, 404 (Tex.Crim.App.1984).
In his sixth point of error, the appellant argues that the trial court erred in allowing the prosecutor to argue at the punishment stage that the appellant was about to commit a violent crime when the police stopped the car.
(No response.)
The evidence showed that the weapons mentioned by the prosecutor were found on the driver and in the car. The prosecutor was entitled to summarize that evidence, and draw reasonable deductions from the evidence. However, there was no evidence that the appellant or the driver was about to commit a crime which would victimize someone.
The argument by the prosecutor invited speculation about the appellant's future criminal activities, which lacked foundation in the evidence. However, by stating that another victim was "probably" saved, the prosecutor conveyed the idea that he was speaking hypothetically. Therefore, the prosecutor did not inject specific new facts into the record.
Furthermore, the prosecutor may argue to the jury a plea for law enforcement. The statement, "[y]ou are all potential victims of people like [the defendants]," has been held to be a permissible plea for law enforcement. Esparza v. State, 725 S.W.2d 422, 427 (Tex.App.--Houston [1st Dist.] 1987, no pet.).
The comment made in this case was not reversible error. See, e.g., Esparza, 725 S.W.2d at 427.
In his second point of error, the appellant argues that the trial court erred in failing to declare a mistrial after the prosecutor argued that the defense counsel was paid not to believe police officers. During summation at the guilt/innocence phase, the prosecutor argued as follows:
The defense attorney's objection was sustained, and he preserved error by requesting and obtaining an instruction for the jury to disregard, and moving for a mistrial. The State argues that: (1) the complaint on appeal varies from the objection made to the trial court; and (2) the comment was a proper response to the defense counsel's argument that the police planted the cocaine in the car.
The appellant cites to a line of cases holding prosecutorial attacks on defense counsel to be reversible error.
We find that the comments in this case do not rise to the level of misconduct in those cases. See, e.g., Bray v. State, 478 S.W.2d 89, 90 (Tex.Crim.App.1972). In Bray, the prosecutor argued, "I shall be eternally grateful that you are the people that are my employers and not the likes of him and that I am not representing this sort of thing ... I am grateful that I don't have to make...
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