Palmer v. State

• Decision Date: 03 June 1993
• Docket Number: No. 01-92-00634-CR,01-92-00634-CR
• Citation: 857 S.W.2d 898
• Parties: David Barrett PALMER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 898

857 S.W.2d 898

David Barrett PALMER, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00634-CR.

Court of Appeals of Texas Houston (1st Dist.).

June 3, 1993.

Michael E. Tuner, Baytown, for appellant.

John B. Holmes, Alan Curry, Houston, for appellee.

Before O'CONNOR, HEDGES and DUNN, JJ.

OPINION

DUNN, Justice.

The trial court found appellant, David Barrett Palmer, guilty of possession of a controlled substance, namely cocaine weighing less than 28 grams. The court assessed punishment at eight-years probation and a $1,000 fine. We affirm.

In his sole point of error, appellant contends there was insufficient evidence to prove his knowing possession of the controlled substance beyond a reasonable doubt.

In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the judgment. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after viewing the entire body of evidence in the light most favorable to the judgment, 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 (1979); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). The standard of review is the same for both direct and circumstantial evidence. Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App.1985); Ramirez v. State, 822 S.W.2d 240, 244 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd).

There is no bright line amount of a controlled substance that establishes knowing possession. Campbell v. State, 822 S.W.2d 776, 777 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd). If the amount of a controlled substance seized from a defendant can be seen and measured, it is sufficient to establish that the defendant knew it was a controlled substance. Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.--Houston [1st Dist.] 1991, pet. dism'd); see Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983). The State must affirmatively link the defendant to the contraband in such a manner that a reasonable inference arises that he knew of its existence and whereabouts. See Ex parte Stowe, 744 S.W.2d 615, 617 (Tex.App.--Houston [1st Dist.] 1987, no pet.). The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991). The State is not required to exclude every other reasonable hypothesis other than the guilt of the defendant. Id. at 159. The evidence, viewed in the light most favorable to the judgment, follows.

At about 3:45 on the morning of November 27, 1991, Officer Brett Baud was on patrol in the Oak Addition of Baytown. He noticed appellant sitting alone in the passenger's side of a parked vehicle. The officer testified that there was light from the street light at the corner of Booker T. and M.L.K., and that several porch lights were on. Officer Baud approached the vehicle to inquire about the welfare of appellant. He asked appellant to step out of the car, which appellant did. The officer asked appellant several questions, and learned that appellant lived 20-25 miles away. Although the officer detected no alcohol odor, he concluded appellant was intoxicated because he noticed appellant's speech was slurred, his eyes were bloodshot, and he was sweating.

As appellant exited the car, the officer saw what he knew to be a glass crack pipe on the floorboard of the car, between appellant's feet. The crack pipe appeared to have black soot inside it. The officer confiscated the pipe and arrested appellant for possession of narcotics paraphernalia. After arresting appellant for possession of narcotics paraphernalia, the officer conducted a field test on the crack pipe. The pipe tested positive for cocaine. A subsequent chemical analysis revealed the pipe contained .28 milligrams of cocaine.

To prevail, the State must prove that appellant exercised care, control, and management over the substance, and that he knew what he possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); Payne v. State, 480 S.W.2d 732, 734 (Tex.Crim.App.1972). Appellant argues that the evidence is insufficient to prove the "knowing" element ¹ of the crime of possession beyond a reasonable doubt. He argues that, in the absence of direct evidence, the State failed to prove sufficient "affirmative links" between the cocaine and appellant.

Affirmative links may be proved by circumstantial evidence; however, proof amounting to a strong suspicion or even a probability will not suffice. Dubry v. State, 582 S.W.2d 841, 844 (Tex.Crim.App. [Panel Op.] 1979). It is also not enough for the State to show only that a defendant was the only one present in the vicinity of a controlled substance. Humason v. State, 728 S.W.2d 363, 367 (Tex.Crim.App.1987). Affirmative links may be established by facts and circumstances that indicate the accused's knowledge of and control over the contraband, including the fact that the contraband was in open or plain view, and that it was in close proximity to the accused. Brazier v. State, 748 S.W.2d 505, 508 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). Additional factors are: whether the defendant was at the place searched at the time of the search; whether other persons were present at the time of the search; and whether the amount of contraband found was large enough to indicate the defendant knew of its existence. Classe v. State, 840 S.W.2d 10, 12 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd).

Appellant relies on Humason to support his argument. In Humason, the police found a very small amount of contraband in a car occupied solely by the defendant. 728 S.W.2d at 364. The judgment of the trial court was reversed partly because the State did not provide proof excluding the reasonable hypothesis that Humason was unaware of the presence of the cocaine. Id. at 366-67. At the time Humason was decided by the Court of Criminal Appeals, in cases involving proof by circumstantial evidence, the State also had to exclude every other reasonable hypothesis except that of the guilt of the defendant. Id. After the Court of Criminal Appeals' decision in Geesa, this is no longer the case. Geesa, 820 S.W.2d at 159. We do not address whether the Humason court's decision would be the same under the Geesa standard.

Appellant argues this case is distinguishable from other cases affirming convictions of possession involving miniscule amounts of controlled substances in that, in those cases, the controlled substances in question were found on the person of the defendants. In this case, the controlled substance was located on the floor, between the feet of appellant.

The chemist testified that he performed two tests on the crack pipe confiscated when appellant was arrested for possession of drug paraphernalia, and concluded the pipe contained .28 milligrams of cocaine, a controlled substance. He testified that if this amount was spread out over the surface of the glass, it would appear as a film. He testified that even after the testing, some cocaine remained in the tube. Thus, based upon the testimony of the chemist, a rational trier of fact could have found the evidence sufficient to establish that the cocaine could be seen and measured, satisfying the first prong of the State's case. See Thomas, 807 S.W.2d at 789.

As the evidence was sufficient to establish that the substance could be seen and measured, we next look to determine whether sufficient affirmative links exist to connect appellant to the controlled substance to prove "knowing" possession. It should be noted that the amount of the controlled substance, or the location of the drug, is not the only consideration in analyzing the affirmative links between appellant and the controlled substance. Appellant was the sole occupant of the vehicle belonging to his mother. Although appellant was seated in the passenger's seat, there was no evidence of a driver or of another occupant. As the officer approached, he noticed appellant leaning back in the seat with his head rolled back. The crack pipe, containing cocaine residue, was found between appellant's feet, on the floor in front of him. The pipe contained crack cocaine residue. Appellant's speech was slurred, his eyes were bloodshot, he stumbled, and he was sweating. The officer detected no odor of alcohol on appellant. A rational trier of fact could have found beyond a reasonable doubt that appellant knowingly possessed the controlled substance.

We overrule appellant's point of error.

The State raises a cross-point relating to the suppression of statements made by appellant when he was booked that he was addicted to crack cocaine. In light of our holding on appellant's point of error, we do not reach this issue.

We affirm the judgment of the trial court.

O'CONNOR, J., dissents.

O'CONNOR, Justice, dissenting.

May the State convict a defendant for knowingly possessing an invisible amount of a controlled substance? The majority says yes; I say no. This is one more in the long line of appeals challenging convictions based on trace amounts of a controlled substance.

Under a sufficiency point of error, the appellant argues the trace amount of cocaine was "too small to support a conviction." The majority correctly states the test for determining "knowing" possession: If the amount of the controlled substance seized from a defendant can be seen and measured, it is sufficient to establish that the defendant knew it was a controlled substance. Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983); Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.-- Houston [1st Dist.] 1991, pet. dism'd). This is a conjunctive test, not a disjunctive one. The drug must be seen and...