Henson v. State

• Decision Date: 25 January 1996
• Docket Number: No. 13-94-416-CR,13-94-416-CR
• Citation: 915 S.W.2d 186
• Parties: Vance Alan HENSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 186

915 S.W.2d 186

Vance Alan HENSON, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-416-CR.

Court of Appeals of Texas,

Corpus Christi.

Jan. 25, 1996.

Richard W. Rogers, III, Corpus Christi, for appellant.

Wiley L. Cheatham, District Attorney, Robert C. Lassman, Asst. District Attorney, Cuero, for appellee.

Before SEERDEN, C.J., and DORSEY and HINOJOSA, JJ.

OPINION

HINOJOSA, Justice.

A jury found appellant, Vance Alan Henson, guilty of possession of more than 400 grams of flunitrazepam, a controlled substance, and the trial court assessed punishment at fifty years in the Institutional Division of the Texas Department of Criminal Justice and a $25,000 fine. Appellant challenges the conviction by six points of error. We affirm.

On February 3, 1993, Department of Public Safety (DPS) Troopers Rudy Jaramillo and Darren Bohne stopped a vehicle in Goliad County for speeding. The vehicle was traveling 68 miles per hour in a 55 mile per hour zone. The driver and owner of the car was Vivian Hausler. Appellant, Hausler's stepbrother, was a passenger in the car. Trooper Jaramillo asked Hausler to walk to the rear of the vehicle so that he could talk to her. Hausler told Jaramillo that she and appellant had driven from Houston to Laredo to visit her grandmother. After noting that Hausler was acting very nervous and finding out that she had visited her grandmother for only forty-five minutes (after a six-hour drive from Houston), Jaramillo questioned appellant. Appellant told the trooper that he and Hausler had gone to Laredo to meet friends; that he knew nothing about a grandmother. Because of these conflicting stories, Jaramillo asked Hausler for consent to search her vehicle. Although Hausler hesitated and conferred with appellant, she ultimately agreed to allow the search. Jaramillo subsequently found five plastic bags containing pills. The pills were confiscated and later determined to be flunitrazepam, a controlled substance.

Appellant and Hausler were indicted for unlawful, knowing, and intentional possession of flunitrazepam in the amount of 400 grams or more. The State offered Hausler a reduced sentence in exchange for her testimony against appellant. Appellant pleaded not guilty, but the jury found him guilty as charged in the indictment. The trial court denied appellant's motion for new trial.

By his second point of error, appellant contends that the evidence was insufficient to prove that the controlled substance, flunitrazepam weighed 400 grams or more by aggregate weight.

The standard for reviewing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Garcia v. State, 887 S.W.2d 862, 867 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993); Valdez v. State, 776 S.W.2d 162, 165 (Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

DPS chemist Donald Thain testified that he tested one pill from each of five envelopes, and that each pill tested positive for flunitrazepam. Next, Thain analyzed one pill from the entire lot to determine the percentage of substances that made up the pill. Thain determined that the pill contained 1.1% flunitrazepam by weight, that 94% of the pill was lactose, and that the composition of the remainder was unknown. Thain testified that lactose merely adds bulk and does not affect the chemical composition of the flunitrazepam. The total weight of the pills was 483 grams. By extrapolating from his analysis, Thain determined the total weight of flunitrazepam and lactose to be 462 grams. Thain testified that all the pills had the same markings and color and were the same size. Thain had been a DPS chemist for nineteen years and during that time, conducted approximately twenty thousand tests to identify unknown substances.

On cross-examination, Thain admitted that it was possible for the lot of pills to contain placebos, but he stated that such a situation was highly unlikely. Appellant contends that because Thain did not test at least one pill from each of the five bags, the jury's decision was speculative and not grounded on sufficient evidence.

The jury, as trier of fact, is the sole judge of a witness' credibility and is free to believe or reject all or any part of the testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). Expert witness testimony regarding the quantity and nature of controlled substances based upon visual observation is proper evidence. McGlothlin v. State, 749 S.W.2d 856, 857 (Tex.Crim.App.1988); Gabriel v. State, 842 S.W.2d 328, 332 (Tex.App.--Dallas 1992), aff'd, 900 S.W.2d 721 (Tex.Crim.App.1995). The manner of testing a substance by random sampling goes only to the weight the jury may give to the tested substances in determining that the untested substance is the same as the tested substance. Gabriel v. State, 900 S.W.2d 721, 722 (Tex.Crim.App.1995).

After viewing the evidence in the light most favorable to the jury's verdict, we hold that any rational trier of fact could have found beyond a reasonable doubt that the controlled substance, flunitrazepam, weighed 400 grams or more by aggregate weight. The State showed, through Thain's testimony, that one pill randomly selected from each of five envelopes was tested for the presence of a controlled substance. It was conclusively established that each of the five pills tested contained flunitrazepam. The State also established that the chemist tested one pill from the entire lot in order to determine the percentage weights of the various substances contained in the pill. After a visual inspection, the chemist determined that the rest of the pills were identical to the one tested. Based on the percentages and the total weight of the lot, the chemist determined the total weights for the substances present in the pills.

It was rational for the jury to conclude that pills which had the same markings, color, and size were in fact the same substance. In addition, appellant could have refuted this evidence by conducting independent chemical tests on the pills in the five envelopes. See TEX.CODE CRIM.PROC.ANN. art. 39.14 (Vernon 1979); Gabriel, 900 S.W.2d at 722. We overrule appellant's second point of error.

By his first point of error, appellant complains that the trial court erred in denying his motion to suppress the evidence obtained during the search of the duffle bag. Appellant contends that Trooper Jaramillo did not have valid consent or probable cause to search the duffle bag. Appellant relies on 1) the Fourth and Fourteenth Amendments to the United States Constitution, 2) article 1, section 9 of the Texas Constitution, and 3) article 38.23 of the Texas Code of Criminal Procedure.

Both the federal and state constitutions protect citizens against unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I § 9. A search conducted without a warrant based on probable cause is per se unreasonable. Juarez v. State, 758 S.W.2d 772, 775 (Tex.Crim.App.1988). No evidence obtained by an officer in violation of the Constitution or laws of the United States or the State of Texas shall be admitted into evidence against the accused during the trial of any criminal case. TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon Supp.1993); Cardenas v. State, 857 S.W.2d 707, 710 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd); Flores v. State, 824 S.W.2d 704, 705 (Tex.App.--Corpus Christi 1992, pet. ref'd). Any protection afforded, however, is waived when an individual consents to a search. Juarez, 758 S.W.2d at 775. A consent to search may be oral and still be valid. Montoya v. State, 744 S.W.2d 15, 25 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). The burden of proof by clear and convincing evidence is on the prosecution to show that the consent was freely and voluntarily given. Juarez, 758 S.W.2d at 775. This burden requires the prosecution to show the consent was positive and unequivocal, and there must not be duress or coercion, actual or implied. Id. Voluntariness is a question of fact to be determined from the totality of all the circumstances. Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App.1985).

Appellant, a passenger in the car, asserts that his Fourth Amendment rights were violated by the search and that the evidence seized during the search must be suppressed. Appellant argues that there was no voluntary consent to search, or if there was consent, it did not extend to the duffel bag. Moreover, appellant contends that Hausler did not have the authority to consent to a search of all the luggage. Finally, appellant claims that Trooper Jaramillo had no probable cause to search the vehicle.

Whether a search is reasonable under the Fourth Amendment is an issue of law that we review de novo. Higbie v. State, 780 S.W.2d 228, 230 (Tex.Crim.App.1989). A mere passenger can challenge the search of the automobile in which he was riding if the search resulted from an infringement of the passenger's Fourth Amendment rights. Lewis v. State, 664 S.W.2d 345, 348 (Tex.Crim.App.1984). Consent to search a vehicle is not required from a passenger, however, where the permission to search was obtained from the owner who possessed authority over the premises or effects sought to be inspected. Williams v. State, 621 S.W.2d 609, 613 (Tex.Crim.App.1981); see Pinkston v. State, 501 S.W.2d 317, 318 (Tex.Crim.App.1973). Such consent is valid as to any items found within the area to be searched. Williams, 621 S.W.2d at 613. The scope of a consent search is limited by the terms of its...