King v. State

• Decision Date: 29 March 1995
• Docket Number: No. 900-93,900-93
• Citation: 895 S.W.2d 701
• Parties: Earnest KING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 701

895 S.W.2d 701

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

No. 900-93.

Court of Criminal Appeals of Texas En Banc.

March 29, 1995.

Danise Crawford, Brian W. Wice, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Kimberly Aperauch Stelter & Terry Yates, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

I.PROCEDURAL HISTORY

Appellant was charged by indictment with intentionally and knowingly possessing cocaine weighing less than 28 grams by aggregate weight, including any adulterants and dilutants, on or about July 29, 1991, in Harris County.On December 17, 1991, appellant was convicted by a jury in the 178th District Court of Harris County, of possession as alleged in the indictment, and thereafter punishment was assessed at thirty-five years confinement in the Texas Department of Criminal Justice-Institutional Division.On appeal, the Fourteenth Court of Appeals reversed judgment of conviction and ordered the trial court to enter a judgment of acquittal.King v. State, 843 S.W.2d 155(Tex.App.--Houston [14th Dist.]1992).This Court vacated the judgment of the court of appeals, and remanded the cause for further consideration of other evidence noted in the State's brief which demonstrated knowledge of the character of the contraband when the substance itself was unable to be weighed.King v. State, 848 S.W.2d 142(Tex.Cr.App.1993).Upon further examination of such evidence, the court of appeals affirmed the conviction and sentence.King v. State, 857 S.W.2d 718(Tex.App.--Houston [14th Dist.]1993).

We granted appellant's petition for discretionary review.His sole ground for review states, "There was insufficient evidence that appellant knowingly possessed a controlled substance."

II.SUMMARY OF PERTINENT FACTS

At approximately 12:05 p.m. on July 29, 1991, after receiving a call regarding a narcotics complaint, the Houston Police Department dispatched an officer to a local apartment complex.Upon arrival the officer observed appellant approaching him from a distance.Appellant appeared to be staggering, and as they moved closer to each other, the officer began to detect a strong odor of alcohol.At trial, the officer testified that not only was appellant staggering, he also swayed back and forth, his speech was slurred, and his eyes were glazed over.After determining that appellant was "obviously" intoxicated to the point where he could be a danger to himself or others, appellant was handcuffed and placed under arrest for public intoxication.A search of appellant revealed a "crack pipe," an instrument used to smoke crack cocaine, in appellant's right front pants pocket.The officer then administered a field test for cocaine by scraping slivers from the "crack pipe," and placing the slivers into a solution which would result in a negative or positive reaction for cocaine.The test concluded positive and appellant was later charged with knowingly and intentionally possessing cocaine.

III.COURT OF APPEALS HOLDING

After remand from this Court, the court of appeals held that the evidence was sufficient to prove that appellant knew that the substance in his possession was a controlled substance because the cocaine was visible in the "crack pipe" recovered from appellant's right front pants pocket, and the "crack pipe" was still damp with saliva when recovered.King v. State, 857 S.W.2d at 720.

IV.APPELLANT'S CLAIM

Appellant claims that because the State relied upon an unweighable amount of cocaine to prove that he knowingly possessed the controlled substance, and because the State failed to prove the required mens rea element of the offense beyond a reasonable doubt, the evidence was insufficient to conclude that he knowingly possessed the controlled substance.He therefore avers that the court of appeals erred in holding that the evidence presented by the State was sufficient to prove appellant's knowing possession of cocaine.

V.STATE'S CONTENTION

The State contends that there was indeed sufficient evidence to support the conviction because there is no minimum weight required to sustain a conviction for possession of a controlled substance, and even if the quantity is too minute to be measured or seen, other evidence can prove that the defendant knew the substance in his possession was a controlled substance.

VI.ANALYSIS

As with all elements of a criminal offense, the State must prove the mens rea element beyond a reasonable doubt.Humason v. State, 728 S.W.2d 363, 366(Tex.Cr.App.1987).In reviewing appellant's claim of insufficient evidence, we must determine not only whether appellant had possession of the controlled substance, but also whether appellant had knowledge of the possession.Mendoza v. State, 636 S.W.2d 198, 200(Tex.Cr.App.1982);Shults v. State, 575 S.W.2d 29, 30(Tex.Cr.App.1979).The standard of review on appeal is the same for both direct and circumstantial evidence.McGoldrick v. State, 682 S.W.2d 573, 577(Tex.Cr.App.1985).The critical inquiry is whether, after viewing the entire body of evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573(1979);Dickey v. State, 693 S.W.2d 386, 387(Tex.Cr.App.1984).In order for the State to meet its burden, and establish that the evidence was sufficient to support a verdict of guilt, it must meet two evidentiary requirements: first, the State must prove that appellant exercised actual care, control and management over the contraband; and second, that appellant had knowledge that the substance in his possession was contraband.Martin v. State, 753 S.W.2d 384, 387(Tex.Cr.App.1988);Herrera v. State, 561 S.W.2d 175, 179(Tex.Cr.App.1978).

After the arrest, the "crack pipe" found on appellant's person was submitted to the Houston Police Department's narcotics laboratory for further tests.At trial, the police chemist, who administered the tests, testified that four types of chemical analyses were performed on the residue found in the "crack pipe," and that these tests revealed that there was a positive presence of cocaine within the residue.The chemist testified, "There was a visible residue in the pipe to the naked eye."The chemist also testified, "[T]he amount of cocaine present ... was small enough where we could not determine the amount."Because the amount of cocaine was too small to be measured, this Court's language in Shults v. State, supra, is controlling.Shults holds that "when the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance."Shults v. State, 575 S.W.2d at 30.Therefore, the State must prove, through other evidence, that appellant had knowledge that the substance in his possession was cocaine.

The State contends that because cocaine was visible in the "crack pipe," and because the "crack pipe" was damp with "saliva" when recovered, such was sufficient proof that appellant knowingly possessed cocaine.Since in the instant cause the cocaine in question is of a microscopic and unweighable amount, we are required to look at other facts to determine whether a reasonable trier of fact could have found beyond a reasonable doubt that appellant knowingly possessed cocaine.After reviewing the record, we find that there is evidence to support the State's assertion and the court of appeals' finding.

The arresting officer testified as to appellant's state of mind and behavior the day of the arrest.According to the officer, "His speech was slurred, he was very incoherent that he didn't really know what was going on was going on....He was like he was in another world....Glazed eyes, he was staggering, swaying back and forth."Believing appellant was intoxicated to a degree that he could possibly harm himself, the officer placed him under arrest.During a routine search of appellant, the officer testified that he found the "crack pipe" in appellant's front pants pocket and that it had a residue inside of it and was damp with what appeared to be saliva.At the station house, the officer did a field test on the pipe which indicated the presence of cocaine.Later tests by a police chemist confirmed this result.

The facts of Shults v. State, supra, must be distinguished from the case at hand.The defendant in Shults was arrested for possession of a controlled substance after a balloon with a trace amount of heroin was found in her mouth.The State proved only that she possessed heroin, not that she knowingly did so.This Court held that the State must present evidence other than mere possession to prove that the defendant knew the substance in her possession was contraband.Shults v. State, 575 S.W.2d at 30.There were no other circumstances surrounding her arrest which could have shown knowledge of possession.Therefore, this Court reversed her conviction because of the insufficiency of the evidence.

In the instant cause, the rule of law in Shults v. State is controlling.However, there is other evidence here which shows that appellant knowingly possessed a controlled substance.The fact that the pipe found on appellant's body had a residue containing cocaine inside of it shows that the pipe had been used to smoke cocaine in the past.The fact that the stem of the pipe was still moist with what appeared to be saliva shows that the pipe-smoking was probably in the very recent past.Although the amount of cocaine was unmeasurable, unweighable, and invisible, the residue containing the cocaine was visible on the "crack pipe."Additionally, appellant's behavior at the time of the arrest shows that he was...