Irvine v. State
| Decision Date | 10 June 1993 |
| Docket Number | No. 01-92-00612-CR,01-92-00612-CR |
| Citation | 857 S.W.2d 920 |
| Parties | Joseph Willie IRVINE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Roland B. Moore, III, Houston, for appellant.
John B. Holmes, Dist. Atty., Alan Curry, Asst., Houston, for appellee.
Before OLIVER-PARROTT, C.J., and HEDGES and DUNN, JJ.
A jury convicted appellant, Joseph Willie Irvine, for possession of a controlled substance. Finding the allegations in two enhancement paragraphs to be true, the jury assessed his punishment at 25-years confinement. We affirm.
Officers Wilburn and Cooper arrested appellant for public intoxication after observing him staggering in the street toward an apartment complex for which they were working security. Their search of his person produced a number of small baggies that contained what appeared to be crack cocaine. Subsequent tests confirmed the nature of the substance. In seven points of error, appellant attacks the judgment of the trial court on various grounds.
In point of error three, appellant argues that the evidence was insufficient to convict him for possession of a controlled substance because the amount of cocaine "was invisible to the naked eye." He contends that given the minute amount of cocaine, the State did not prove that he knowingly possessed a controlled substance. We disagree with appellant's characterization of the evidence.
Appellant asserts that "Charles Moore of the Harris County Medical Examiner's Unit stated that the amount of substance was invisible to the naked eye." Mr. Moore actually testified as follows:
Q. Okay. Now you examined 11 baggies, correct?
A. Correct.
Q. Assuming there were equal amounts in each baggie, since you didn't test them individually, how many--divide 2.69 by 11, and what do we have there?
....
A. Approximately .24 milligrams per baggie.
Q. Is that correct, .24 milligrams? So, .24 times 11 equals 2.69 milligrams that you got?
A. Correct.
....
Q. Would you agree that .24 is not something you could see with your eye?
A. .24 milligrams of cocaine, probably not. I can't say a hundred percent, but probably not. 1
The possession of even a minute amount of a controlled substance is sufficient to sustain a conviction if the amount can be seen and measured. Sims v. State, 833 S.W.2d 281, 284 (Tex.App.--Houston [14th Dist.] 1992, no pet.); see Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.--Houston [1st Dist.] 1991, no pet.). The evidence indicates that the cocaine in this case could be seen and measured.
It is apparent that Mr. Moore was responding to a hypothetical assumption that the cocaine was divided equally among the 11 baggies seized. Appellant's counsel prefaced his questions with, "Assuming there were equal amounts in each baggie ..." There is no evidence in the record that the cocaine was, in fact, divided into exactly equal amounts between the 11 baggies, or that none of the baggies contained enough cocaine to be seen with the naked eye. Mr. Moore stated that he "clearly saw a white substance in those bags when they were received[.]" Additionally, one officer testified that he saw "white particles" in the baggies, and another testified that he saw "white powder residue in each baggie."
The cocaine found in appellant's possession was not "invisible to the naked eye." There was evidence that the controlled substance could be seen and measured. We overrule point of error three.
In point of error one, appellant contends that the trial court erred by denying his motion for new trial, which was based on alleged jury misconduct. He argues that the jury's alleged discussion of his failure to testify at trial constitutes jury misconduct.
The trial court decides issues of fact raised in a motion for new trial based on alleged jury misconduct. Carrillo v. State, 566 S.W.2d 902, 913 (Tex.Crim.App. [Panel Op.] 1978). The trial court is free to believe one or some of the jurors' testimony and disbelieve that of other jurors. Thomas v. State, 699 S.W.2d 845, 854 (Tex.Crim.App.1985). "Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial." Id. at 854; see Carrillo, 566 S.W.2d at 913.
Appellant filed two motions for new trial based on jury misconduct. At a hearing on appellant's motion, the trial court heard the testimony of four jurors. The jury foreman testified as follows:
Q. I want to ask you about the deliberations that took place amongst the jury of which you were a foreman. Was there a discussion during the jury's deliberations of the fact that Mr. Irvine did not testify?
A. Yes, sir.
....
Q. And that fact was discussed amongst the jury?
A. Yes, sir.
Q. How much time was devoted to that discussion?
A. About 25, 30 minutes.
Q. And how long after that did the jurors vote to convict Mr. Irvine?
A. I'd say about another 20, 25 minutes.
....
Q. Is it true the fact that he did not testify made you vote to convict Mr. Irvine?
A. Yes, sir--
....
Q. Did that discussion cause you to change your vote from not guilty to guilty?
A. Yes, sir. What it was, we didn't deny that he was caught with the evidence.
....
Q. After the discussion about the defendant not testifying, you decided to convict him rather than to acquit him; is that correct?
A. Yes, sir, according to the evidence.
Q. Do you know from the--if anyone else changed their vote because of that discussion?
A. Yes, sir.
Q. Do you know which other juror changed their vote?
A. I'm not at liberty to say, sir.
Q. But you are sure there was at least one and possibly more jurors that changed their vote?
A. Possibly.
(Emphasis added.)
Two jurors who also testified at the hearing contradicted the foreman's testimony regarding a 25 to 30-minute discussion of the matter:
(1)
Q. Sir, do you remember any comments being made during the juror deliberations regarding the defendant's failure to take the witness stand in his own behalf?
A. Well, I just remember that it was--everybody kind of wondered. I guess everybody was wondering why, and it was brought up once and immediately put aside because we all realized that we were told that we weren't supposed to consider that.
Q. So, you are saying that the matter was brought up once; and when it was brought up, other jurors admonished whoever brought it up that it was not to be discussed, and there was no further discussion of it?
A. Yes. That's the way I understood it.
Q. There was no 25 to 30 minute discussion of the fact that he didn't take the witness stand?
A. No, sir.
(2)
Q. And as a member of that jury, do you recall whether any statements were ever made in the jury room regarding the fact that Mr. Irvine did not take the witness stand and testify?
A. Yes, I do recall that being brought up.
Q. In what context were those statements made?
A. It was brought up, but, then, someone else immediately said, "We cannot take that into consideration."
Q. So, was there ever any prolonged discussion of the fact that Mr. Irvine did not take the witness stand?
A. No, sir.
Q. Do you recall how many times it was brought up, this fact that he didn't take the stand?
A. I think it may have been brought up more than once, but every time it was, immediately, we can't think about that. It's not part of what we can consider.
Q. All right. So, it never played--it was never discussed for any prolonged period of time?
A. No, sir.
Q. And it was appropriately squelched whenever it was brought up by other jurors?
A. Yes, sir.
There was also testimony from jurors that there was no discussion of appellant's not testifying:
(1)
Q. Was there some discussion about whether or not he testified?
A. No. We didn't discuss it.
Q. Did it come up once?
A. Once, but we didn't discuss it.
(2)
Q. [W]as there some discussion?
A. It was brought up and immediately someone said, "We cannot discuss that."
Q. Was there any interplay between the person that brought it up and anyone else in the jury?
A. Not that I recall.
Q. Some?
A. Not that I recall.
The failure of a defendant to testify in his own criminal proceeding should not be held against him by the jury. See Kopanski v. State, 713 S.W.2d 188, 191 (Tex.App.--Corpus Christi 1986, no pet.). But mere references by jurors to the fact that the defendant did not testify do not amount to reversible error. Powell v. State, 502 S.W.2d 705, 711 (Tex.Crim.App.1974); see Kopanski, 713 S.W.2d at 191. To constitute reversible error, the references "must amount to a discussion by the jurors or be used as a circumstance against the accused." Powell, 502 S.W.2d at 711; Kopanski, 713 S.W.2d at 191.
The trial court evidently believed the jurors who stated that appellant's failure to testify was not discussed and disbelieved the juror who said it was. This determination was within the court's discretion. Thomas, 699 S.W.2d at 854; Carrillo, 566 S.W.2d at 913.
The record also supports the conclusion that appellant's failure to testify was not "used as a circumstance against" him. The trial court heard testimony that whenever the matter was brought up, other jurors would admonish the juror who raised it that the jury was not to consider it.
The trial court did not abuse its discretion in denying appellant's motions for new trial. We overrule point of error one.
In point of error two, appellant contends that the trial court erred in denying his motion to suppress evidence. He argues that because his warrantless arrest was without probable cause and therefore unlawful, the State cannot justify the seizure of the cocaine as incident to a lawful arrest. We disagree that appellant's arrest was unlawful.
Appellant was arrested for public intoxication. An individual commits the offense of public intoxication if he or she "appears in a public place under the influence of alcohol or any other substance, to the degree that the individual may endanger himself or another." TEX.PENAL...
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