Morr v. State, 60396

• Decision Date: 19 September 1979
• Docket Number: No. 1,No. 60396,60396,1
• Citation: 587 S.W.2d 711
• Parties: Dennis Wayne MORR, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 711

587 S.W.2d 711

Dennis Wayne MORR, Appellant, v. The STATE of Texas, Appellee.

No. 60396.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 19, 1979.

Rehearing En Banc Denied Oct. 31, 1979.

Jeffie J. Massey, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Ronald D. Hinds and Michael E. Keasler, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the unlawful possession of cocaine, where the punishment was assessed by the jury at ninety-nine years' imprisonment after a verdict of guilty and a finding that appellant had been previously convicted of burglary as alleged.

At the outset we shall consider appellant's contention that the evidence is not sufficient to sustain the conviction.

Omitting the formal parts, the indictment charged the appellant "on or about the 10th day of November in the year of our Lord One Thousand Nine Hundred and 77 in the County and State aforesaid, did unlawfully, knowingly and intentionally possess a controlled substance, namely, cocaine . . . ."

Appellant calls attention to Guitierrez v. State, 533 S.W.2d 14 (Tex.Cr.App.1976), which held that in most narcotic possession cases "In order to sustain a conviction, the State must prove: (1) that the accused exercised actual care, control and management over the narcotic or dangerous drug, and (2) that he knew the object he possessed was contraband." See also Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977).

Appellant argues, among other things, that the State failed to prove, beyond a reasonable doubt, that he knew that the thing he allegedly possessed was cocaine.

In the late afternoon of November 10, 1977, Dallas city police officer Q. D. Stevens received a tip from an informer, who in the past had provided information proven to be correct, that appellant was going to be involved in a Marihuana transaction that afternoon. Appellant's apartment was placed under surveillance. Somewhere between 6:30 and 7 p. m. on the date in question appellant arrived at the apartment complex in a 1969 green Oldsmobile. After appellant left the car and apparently went to his apartment about an hour or hour and a half later, approximately 8:30 p. m., appellant returned to the car. In the interim, the time not being designated, officer Stevens, who had the car under surveillance, by virtue of street lights, approached the car and looked in. He did not see anything on the front seat or on the rear floorboard. When the appellant returned to the car, he was observed to open the trunk, but no one saw what he was doing inside the trunk. Appellant closed the trunk and got in the Oldsmobile and drove to Mesquite. He was followed by Dallas city police officers. He stopped at an apartment complex and went into an apartment for about fifteen minutes. When he emerged from the apartment, he carried a brown paper sack. He entered the Oldsmobile and drove away towards Dallas. Later when the speed of the car appellant was driving increased ". . . up to 80 or 90 miles an hour," a marked police vehicle was contacted and a uniformed officer stopped the car appellant was driving. The uniformed officer found a syringe in appellant's shirt pocket containing a liquid. Officer Mee, who had been assisting officer Stevens in the surveillance, arrived shortly after the stop and searched the car appellant was driving. No marihuana was found. The brown sack found in the front seat contained bottles of pills. On the floorboard of the back seat Mee found a box a little larger than a shoe box which had some pliers and a can of motor oil in it. On top of the box were some vials. Mee, without any effort to establish his expertise and without objection, testified: "It's a vial that you test cocaine with, remove this top right here and take a pinch of cocaine, and put it in here and if it is cocaine, it will change to the color of blue." It is not clear from the record how many vials were found, but it appears only two had a bluish residue. Mee said, "Point of it being cocaine, I couldn't definitely say it was cocaine until a chemical analysis had been run." The appellant was arrested for possession of the pills and later that night was charged with possession of cocaine. The chain of custody of the items seized was established. It was shown that the syringe did not contain a controlled substance. It was agreed the pills in the bottles in the brown sack were caffeine pills. Dr. W. T. Lowery, a chemist, testified that the substance submitted to him by the police, apparently one or two vials containing a bluish residue, contained .38 milligrams ¹ of cocaine, which was 0.5% Of the total content tested. The direct examination of Dr. Lowery reflects:

"Q. Okay. And let me ask you, Dr. Lowery, if you are familiar with a device such as this, as a cocaine tester? Have you even seen one before?

"A. I have seen it. I have never used it.

"Q. Okay, are you familiar with the operation of it in terms of does it if cocaine is placed in cocaine tester, does it turn the chemical in the tester a bluish color?

"A. I believe it does.

"Q. You personally haven't used it?

"A. No, I haven't."

Later he testified that he was not sure of the exact chemicals in the testers but he wouldn't think the chemicals were fit for human consumption and that if cocaine were added it "wouldn't be a good idea for somebody to try and inject that into their body."

Testifying, the appellant stated he had borrowed the car involved from a friend on the afternoon in question and didn't inspect it and didn't...