King v. State

• Decision Date: 05 November 1992
• Docket Number: No. B14-92-00002-CR,B14-92-00002-CR
• Citation: 843 S.W.2d 155
• Parties: Earnest KING, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 155

843 S.W.2d 155

Earnest KING, Appellant, v. The STATE of Texas, Appellee.

No. B14-92-00002-CR.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 5, 1992.

Rehearing Denied Dec. 3, 1992.

Danise M. Crawford, Houston, for appellant.

Kimberly Aperauch Stelter, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Earnest King, appeals his judgment of conviction for the offense of possession of a controlled substance, namely, cocaine, weighing less than 28 grams by aggregate weight, including any adulterants and dilutants. TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) and § 481.115(a), (b) (Vernon 1992). The jury rejected appellant's not guilty plea and the court after finding the two enhancement paragraphs of the indictment to be true, assessed his punishment at thirty five (35) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We reverse the trial court's judgment and remand it to enter a judgment of acquittal.

Appellant brings two points of error in his appeal. In his first point of error, he asserts that there was insufficient evidence that he knowingly possessed a controlled substance. We agree.

The relevant facts are as follows: On July 29, 1992, Officer Thrailkill and his two partners, Officer McFadin and Maycak were dispatched to an apartment complex on Tuam Street to check out a narcotics complaint. This complaint was received from a citizen who called the City of Houston Police dispatcher. When he arrived, Thrailkill saw appellant staggering down a sidewalk. Thrailkill approached and could smell a strong odor of an alcoholic beverage on appellant's person. Appellant was incoherent, had glazed eyes and slurred speech and was walking rather disoriented. Fearing appellant's condition to be a danger to himself, Thrailkill placed appellant under arrest for public intoxication. Thrailkill searched appellant and found a crack pipe in appellant's right front pants pocket. Officer Thrailkill field tested residue from the pipe and it tested positive for cocaine.

Officer Thrailkill testified that this crack pipe he received from appellant was a glass tube with a piece of a copper brillo pad inside, which is used as a filter. Thrailkill stated when he received the crack pipe it had damp residue inside. Scott Wagner, the Houston Police Department chemist, testified that he ran a series of four tests on the residue from the glass tube and copper brillo pad. These tests consisted of (1) an ultraviolet spectrophotometer test; (2) a thin layer chromatography test; (3) a microcrystalline test; and (4) a gas chromatograph mass spectrometer test. The tests showed traces of cocaine present in the residue but the amount was so minute that its weight could not be measured. The chemist testified that in testing the residue in the pipe, he rinsed the pipe with the pad included inside. In the process of rinsing the pipe, the brillo pad was also rinsed. After running the tests the amount was too small to be measured.

The following exchange took place during cross-examination of the chemist:

Q. What do you mean by you could not determine the weight?

A. In cases that we encounter sometimes there is such a small amount or the sample contains adulterants that prevents us from using that test to determine the weight.

Q. And you're telling the jury that you understand the ultraviolet spectrophotometry test, there is no possible numbering grams, milligrams, micrograms that you could tell us that was contained in that pipe?

A. No, it was not possible to determine the weight.

Appellant contends the evidence was insufficient to show he knowingly possessed cocaine because the amount recovered was too small to be weighed and measured. The test is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in a light most favorable to the verdict. Alexander v. State, 740 S.W.2d 749, 757 (Tex.Crim.App.1987). The State must prove the accused (1) exercised care, custody, and control over the substance; and (2) knew it was contraband. Herrera v....