Jarrett v. State
Decision Date | 17 October 1991 |
Docket Number | No. 01-90-00498-CR,01-90-00498-CR |
Parties | Lawrence A. JARRETT, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
Court | Texas Court of Appeals |
Yardley Kennedy, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Asst. Harris County Dist. Atty., for appellee.
Before TREVATHAN, C.J., and O'CONNOR and COHEN, JJ.
A jury convicted appellant of possession of less than 28 grams of cocaine, found two enhancement paragraphs true, and assessed punishment at 44 years confinement.
Appellant contends in the first point of error there is insufficient evidence to show he knowingly possessed cocaine because there was no visible cocaine in the crack pipe he possessed when arrested.
In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).
Officer Rodriguez arrested appellant on February 5, 1990, while executing a search warrant at a house. In the preceding month, police had received a complaint of drug activity there, and police bought drugs there on January 22. When arrested, appellant was holding a metal crack pipe in his hand and trying to conceal it in his pocket. Rodriguez saw cocaine residue in the pipe. Rodriguez testified crack pipes were distinguishable from tobacco pipes because they were usually made of car antenna type material or glass tubes. During the raid, some others were arrested and a total of three crack pipes were seized.
A chemist analyzed the pipe's contents and found two milligrams of cocaine. The chemist testified he found no visible cocaine on the pipe. The chemist also testified that one milligram consists of about 10 grains of sugar of an average size, and "two milligrams would be about the same as a dusting of sugar grains that you would see."
If the controlled substance can be seen and measured, the amount is sufficient to establish the accused knew it was a controlled substance. Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.--Houston [1st Dist.] 1991, no pet.) (defendant possessed .8 milligrams cocaine in a plastic bag); Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd) ( ). Rodriguez testified he saw the residue inside the crack pipe. The jury was the sole judge of the credibility of the witnesses and was able to accept or reject any part or all of any witness' testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. [Panel Op.] 1978). The jury was free to believe Rodriguez' testimony that the cocaine was visible. See id. Here, appellant possessed the cocaine inside a crack pipe, which is drug paraphernalia, and tried to hide it from police, both acts indicating guilty knowledge. TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(L) (Vernon Pamph.1991). Viewing the evidence in the light most favorable to the verdict, there was sufficient evidence to support appellant's conviction. See Butler, 769 S.W.2d at 239.
The first point of error is overruled.
Appellant contends in his second point of error the prosecutor injected harmful and prejudicial facts into evidence by her comments during closing argument.
During closing argument, the prosecutor referred to the location of appellant's arrest and asked, Appellant objected the comment was outside the record, and the prosecutor contended it was in the record. The court stated he could not remember whether it was, or was not, in the record, but admonished the jury to remember the evidence as they heard it, and disregard the statement if it was not in evidence. Appellant did not request a mistrial or any further relief.
Appellant again objected the argument was outside the record, and the court agreed that he did not remember evidence other than that of the crack pipes. Appellant did not request any further relief.
When the court instructs the jury to disregard and appellant does not move for a mistrial, appellant has received the relief he has requested and no adverse ruling of the court is presented for review. Kennedy v. State, 520 S.W.2d 776, 778 (Tex.Crim.App.1975). This is true even when the argument would have been reversible error if properly preserved. Id. Appellant received the relief he requested and did not receive an adverse ruling from the court on his objections; therefore, he did not preserve error regarding these comments.
Appellant did not object to these comments; therefore, nothing is preserved for review. TEX.R.APP.P. 52(a)
By overruling this point of error, we do not approve of the prosecutor repeatedly arguing facts outside the record. Even though there was no evidence that others in the house were selling, using, or smoking cocaine, the prosecutor twice stated this was so. In a close case where error is preserved, such overkill could require reversal.
The second point of error is overruled.
The judgment is affirmed.
I dissent from the majority's resolution of point one. In point one, appellant contends there is insufficient evidence to show he knowingly possessed cocaine because there was no visible sign of cocaine in the crack pipe he possessed when arrested.
To resolve this point, we must compare the testimony of Officer Rodriguez and the chemist: Officer Rodriguez said he saw cocaine residue on the pipe; the chemist testified he found no visible cocaine on the pipe. Thus, whatever Officer Rodriguez saw on the pipe, it was not cocaine residue. The only cocaine found was inside the pipe.
The majority says that Rodriguez testified he saw the residue inside the crack pipe. His testified as follows Q: But you do know, you can tell the jury he wasn't smoking crack cocaine when you came through that door; is that right?
. . . . .
To continue reading
Request your trial-
King v. State
...that "cocaine residue" therein was "visible to the naked eye" required order of acquittal), PDR ref'd. Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.--Houston [1st] 1991), no PDR; Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.--Houston [1st] 1991) ("If the controlled substance can be seen ......
-
Mayes v. State
...2.2 milligrams, Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd); 2 milligrams, Jarrett v. State, 818 S.W.2d 847 (Tex.App.--Houston [1st Dist.] 1991, no pet.); 1.7 milligrams, Tomlin v. State, 338 S.W.2d 735, 737 (Tex.Crim.App.1960); 0.8 milligrams, Thom......
-
Guy v. State
...testimony of officer who saw defendant holding crack pipe was sufficient to affirmatively link defendant to the contraband); Jarrett v. State, 818 S.W.2d 847, 848-49 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (holding evidence that Appellant was arrested holding crack pipe that contained ......
-
Victor v State
...the defendant knew it was a controlled substance. Mayes v. State, 831 S.W.2d 5, 7 (Tex.App.-Houston[1st Dist.]1992, no pet.); Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.-Houston[1st Dist]1991, no pet.); Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.-Houston[1st Dist.] 1991), pet. dism'd......