King v. State

• Decision Date: 23 June 1983
• Docket Number: No. 13-82-013-CR,13-82-013-CR
• Citation: 656 S.W.2d 544
• Parties: Randall KING, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 544

656 S.W.2d 544

Randall KING, Appellant, v. STATE of Texas, Appellee.

No. 13-82-013-CR.

Court of Appeals of Texas Corpus Christi.

June 23, 1983.

Rehearing Denied Sept. 15, 1983.

James M. Murphy, Dallas, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

YOUNG, Justice.

A Nueces County jury found Randall King guilty of possession of marihuana in an amount of more than four ounces. ¹ As punishment, the jury assessed a fine of $5,000.00 and a ten year prison term, which confinement was probated.

King brings forth eight grounds of error for our consideration. We shall begin by addressing the grounds which do not require lengthy references to the record.

Grounds of error two through four refer to the language defining the offense in the indictment and the jury charge. The appellant complains that an element of the offense was omitted. The indictment charges that Randall King did "intentionally and knowingly possess marihuana in an amount of more than four ounces" and the charge to the jury tracked that language. The statute in effect at the time provided that it was an offense to knowingly or intentionally possess a usable quantity of marihuana and further provided that possession of more than four ounces was a felony. Tex.Rev.Civ.Stat.Ann. Art. 4476-15 § 4.05 (Vernon 1976).

The appellant complains that the omission of the words "usable quantity" renders the indictment defective. The Court of Criminal Appeals has determined that this phrase was inserted to prevent conviction for possession of trace amounts. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). Therefore, the minimum quantity requirement of "usable amount" is applicable to the lowest grade, a Class B misdemeanor prohibiting possession of two ounces or less. See Tex.Rev.Civ.Stat.Ann. Art. 4476-15 § 4.05(b)(3) (Vernon 1976); current version is § 4.051(b)(1) (Vernon Supp.1982). "More than four ounces" and "usable quantity" both define the amount of marihuana in the defendant's possession. With the exception of Class B misdemeanors, use of a minimum quantity term is superfluous when the indictment already charges "more than four ounces".

The appellant relies on Tovar v. State, 612 S.W.2d 616 (Tex.Cr.App.1981) which held that an indictment for possession of marihuana was defective. Unlike the case before us, the Tovar indictment lacked any allegation of quantity. We hold that this indictment sufficiently sets forth the elements of the offense as intended by the Legislature. The second ground of error is overruled.

The third ground of error is essentially the same complaint as the second, except that it refers to the court's charge to the jury. For the reasons cited above, it is overruled.

In his fourth ground, the appellant argues that the court impermissibly created a presumption that "more than four ounces" is a "usable quantity". Among the general propositions of law in the charge was one which stated that possession of a "usable quantity" of marihuana is an offense. The application clause charges the jury to determine whether the appellant possessed more than four ounces. The appellant construes these statements together to find the impermissible presumption equating "usable quantity" with "more than four ounces". We fail to see the harm caused to the appellant by such a presumption, since the jury was authorized to convict only if they found that he possessed the greater of two quantities. We need not attempt to follow his logic, however, because his trial objection did not comport with his ground of error on appeal. He has, therefore, presented nothing for our review. Woods v. State, 479 S.W.2d 952, 954 (Tex.Cr.App.1972). The fourth ground of error is overruled.

In his seventh ground, King contends that the trial court erred in denying his motion for mistrial after the prosecutor improperly commented on his failure to testify during closing argument at the punishment phase. Sam and Marjorie King, the appellant's parents, and several of his friends testified in support of his application for probation. In his review of the evidence during closing argument, the prosecutor referred to the testimony of the defense witnesses in the following manner:

You have heard testimony from all these witnesses that have come in, the mother, the father, they're fine people. The people that came here for him, they're his friends, I don't doubt that....

And in time of need family and friends gather. And sometimes it might be questionable, but there's no need to ask those people any questions because it would serve no purpose. They care for this particular person, but let's don't lose sight, ladies and gentlemen that Mr. King committed a crime. Mr. King, I believe, is an intelligent man and he knows that he committed a crime, he knows he's guilty.

Defense counsel objected that the statement that King knew he was guilty, constituted a reference to his failure to testify. The trial court instructed the jury to disregard the remark but denied the motion for mistrial.

In order to constitute an impermissible comment on a defendant's failure to testify, the prosecutor's language must be either manifestly intended, or of such a character that the jury would necessarily conclude that it was a comment on the defendant's silence. Angel v. State, 627 S.W.2d 424, 426 (Tex.Cr.App.1982). The State should have omitted references to what King did or did not know about his guilt since there was no evidence on this issue. We do not think that a jury would necessarily perceive, however, that the statement was a comment on the defendant's failure to testify. An additional reason for our overruling this contention is that the trial court neutralized any harm by instructing the jury to disregard the remark.

The remaining grounds of error necessitate a recitation of more of the facts. The State attempted to show that Randall King was the pilot of an airplane which crashed on an access road to IH-37 in Nueces County on December 1, 1980, at approximately 7:30 a.m. The plane contained twenty-three bales of marihuana which amounted to 458 pounds. The main issue in the case concerned identity since none of the State's witnesses observed the pilot in the plane.

The State began its case with the testimony of Jackie Taylor, an air traffic controller on duty the day of the crash, who observed a plane go down at 7:40 a.m. Taylor recorded the conversations between the tower and the pilot embodied in State's Exhibit 2, which was played for the jury.

Sgt. Mike Burns of the Corpus Christi Police Department testified that he had become familiar with King's voice during the course of an investigation in which King cooperated. He listened to the tape and identified the pilot's voice as King's.

Brian Schmidt, who was on his way to work that morning, also observed a low-flying aircraft. He drove to the scene intending to help the pilot. When he arrived there were other people standing outside the plane. While he never saw anyone in the plane, Schmidt did observe a man who got up on the right wing of the plane and said "Everything is going to be okay." The witness identified the appellant as that man. Later, Schmidt saw a man running toward a blue car, but he was unsure if it was the same man he saw on the wing.

Larry Dueitt, the owner of a blue Ford, was also on his way to work that morning. He drove close to the downed plane, then began to leave when he saw that no one was inside and when he feared there might be an explosion. As he started to drive away, a clean-cut Anglo male in his late twenties to mid-thirties approached and knocked on his window. The man, who never gave a name, said that he wanted a ride to the nearest phone so that he could call the tower to inform them that he was all right. Dueitt's passenger explained that he came from San Antonio and that he ran out of fuel. Mr. Dueitt drove the man to the Hilton Hotel. While the witness said that he believed the appellant was his passenger, under cross-examination he admitted that he could not be absolutely certain.

A fifth witness, William Einhaus, for the prosecution, testified that on the morning of December 1, 1980, King called him and asked to borrow his plane. Einhaus, a friend of the appellant, consented, met King and drove him to the airport.

The remainder of the evidence was developed through the police investigation. F.A.A. documents, including bills of sale and registration, showed that the owner of the plane involved in the crash was Randall King. Contents of the airplane which were introduced included the bales of marihuana, a briefcase, maps, an aeronautical chart, a semi-automatic gun and ammunition. A chemist testified that the bales were indeed marihuana. Among the items were a piece of paper and a cardboard box with the name Randall King written on them. Photographs of fingerprints lifted from one of the bullets and from a map matched the appellant's.

The defense called a police officer and the investigator for the district attorney to testify about their efforts to locate other witnesses. The final defense witness was Stephen Knief, who was on the scene soon after the crash. Knief did not see anyone in the plane. He remembered that there were between three and five people present when he arrived. He spoke to one man, who he was sure was not the appellant, but he did not know whether the man he spoke to was the pilot.

In his first ground of error, the appellant disputes the trial court's refusal to grant his motion for continuance which he made on the day of trial. At the appellant's request, the trial court had already granted two continuances, resulting in a trial delay of nine months. Defense counsel stated that this postponement was needed in order to locate evidence, specifically latent prints which the police lifted from the Dueitt vehicle.

At the hearing on the motion, two assistant district attorneys...