Parr v. State

• Decision Date: 30 September 1993
• Docket Number: No. C14-92-00543-CR,C14-92-00543-CR
• Citation: 864 S.W.2d 132
• Parties: Daniel Wayne PARR, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 132

864 S.W.2d 132

Daniel Wayne PARR, Appellant, v. The STATE of Texas, Appellee.

No. C14-92-00543-CR.

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

Sept. 30, 1993.

Rehearing Denied Oct. 28, 1993.

Winston E. Cochran, Houston, for appellant.

Rikke Graber, Houston, for appellee.

Before ROBERTSON and CANNON, JJ., and ROBERT E. MORSE, J., Sitting by Designation.

OPINION

ROBERTSON, Justice.

A jury found appellant guilty of the offense of possession of a controlled substance. The enhancement paragraphs were found true, and the judge assessed punishment at forty years confinement in the Institutional Division of the Texas Department of Criminal Justice. In five separate points of error, appellant contends there was insufficient evidence to sustain the conviction, that the court committed harmful error in admitting impermissible hearsay, and that error occurred in submitting the second enhancement allegation. We affirm.

Appellant's first point of error complains of insufficient evidence to convict the appellant of the alleged offense. In addressing a factual insufficiency point, the reviewing court must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime as alleged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). We do not resolve any conflict of fact or assign credibility to the witnesses' testimony, as such matters are properly within the function and purpose of the jury. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). To prove unlawful possession of a controlled substance, the state had to prove the following elements: one, that the accused exercised control, management, and care over the substance; and two, that the accused knew the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). In this regard, we state the following facts as adduced at trial, looking at the evidence in a light most favorable to the verdict.

Appellant had been under periodic surveillance for approximately one month prior to his arrest. On the day in question, undercover police officers saw appellant get into his car and followed him as he drove to a grocery store, where the appellant got out of the car and made a phone call. Soon after the phone call, an individual arrived at the scene and handed something to the appellant. The appellant then drove two blocks away. The officers testified at trial that based on their years of experience as narcotics officers, this scene looked like a typical drug transaction. To apprehend the appellant before he could inject the drugs, the officers moved in with their vehicles and arrested the appellant. One officer testified to seeing drug paraphernalia on the floor of the driver's side of the appellant's vehicle when he got out of the car. One of such items found was the bottom portion of a Sprite can, a makeshift "cooker" typically used to heat heroin so that it may be injected. The officer also noticed syringes lying on the floor of the car on the driver's side, and track marks on the arms of both the appellant and the appellant's brother who was the passenger in the vehicle. The officers also recovered from the car a red plastic bag. Suspecting that the bag contained a controlled substance, the officers submitted the bag for laboratory tests. The tests showed that 0.1 milligrams of heroin were present in the red plastic bag, and 0.2 milligrams of heroin were present in the soda can bottom. No substance was found on the syringes.

Appellant argues strongly that, according to Campbell v. State, 822 S.W.2d 776 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd), visibility is the gravamen of this or any possession case. Lack of a bright-line rule, however, in determining knowing possession of a controlled substance means that we cannot mechanically determine whether the elements of possession are met from just looking at objective measurements arrived at through laboratory tests. Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983). The state still must meet its burden of proving knowing possession, and circumstantial evidence is a legitimate means of doing so. See Fuller v. State, 827 S.W.2d 919 (Tex.Crim.App.1992); Johnson v. State, 803 S.W.2d 272, 279-80 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991). Because of the above described circumstances and facts present in this case, we find this case consistent with Campbell. In Campbell, the appellant had been arrested for public intoxication. The search pursuant to that arrest yielded a matchbox which was later tested and found to contain 0.6 milligrams of cocaine. Campbell, 822 S.W.2d at 777. This court reversed appellant's conviction in Campbell not solely because of the lack of testimony that the drug was visible to the naked eye, but because of the lack of any other circumstance, in addition to measurability, connecting the appellant to knowing possession of the controlled substance. See id. at 777-78.

In contrast, in the instant case, just as in Chavez v. State, 768 S.W.2d 366 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd), other circumstances are present to uphold the jury's verdict, namely, signs alerting experienced narcotics officers to the presence of drugs. In Chavez, the only such evidence was a firearm and a plastic "baggie" which, officers testified at trial, was a common means of transporting cocaine. Id. at 368. In the instant case, a far greater accumulation of circumstances when viewed in their totality point to the appellant's involvement in the possession of the heroin: the movements and interactions of the appellant typifying a drug transaction, the "cooker" which was warm when the officers arrested the appellant, the track marks on the appellant, and the testimony of appellant's brother that appellant was a drug user.

Based on these facts which were before the jury, we find that the jury could find beyond a reasonable doubt that appellant was guilty of possession of a controlled substance. We overrule appellant's first point of error.

Appellant's second and third points of error present a more difficult question as they complain of the harm incurred by the judge admitting hearsay evidence. The prosecutor explained in his opening remarks that the jury would be hearing from police officers that they had heard appellant was engaged in some "illegal activity." Counsel objected that such information would be hearsay, but the trial judge overruled the objection. Thus, when the prosecutor asked the testifying officer on direct why the appellant was under surveillance, the officer responded that they "had received information from a confidential informant that [the appellant] was a professional shoplifter as well as a drug abuser." The state argues that these statements were not offered for their truth, but rather for the purpose of showing why the appellant was under surveillance. This court has implicitly approved other ways of revealing to the jury how and why a particular suspect is under surveillance without resorting to inadmissible hearsay. See, e.g., Stewart v. State, 640 S.W.2d 643, 645 (Tex.Civ.App.--Houston [14th Dist.] 1982, no pet.). The court of criminal appeals has also recognized the parameters of admissible testimony when a police officer is describing such background information, stating that it is more appropriate for the officer to state merely that he was acting "in response to 'information received.' " Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App.1989). A party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. Id.

We find that, contrary to the state's argument that appellant had to ask also for an instruction to disregard in order to preserve error, appellant did not waive his right to appeal this error. Timely objection adequately preserves the error for appellate review. James v. State, 772 S.W.2d 84, 100 (Tex.Crim.App.1989). If the objection had been sustained, then appellant would have had the burden of requesting such further relief. See Henderson v. State, 617 S.W.2d 697, 698 (Tex.Crim.App.1981); Smith v. State, 547 S.W.2d 6, 12 (Tex.Crim.App.1977). The case the state cites as supporting its proposition to the contrary is inapposite.

While it was indeed error for the trial judge to admit what is clearly hearsay, despite the prosecutor's attempt to disguise it, the central question is whether the error constitutes reversible error. For this analysis, we will first address the remark that appellant was a drug abuser and the possibility that this error was cured by later testimony. After the testimony of the arresting officers, the appellant called as a witness his brother, who had been the passenger in the vehicle, to testify on behalf of appellant. The witness, who had already been convicted for offenses arising out of this same episode, stated that the drug paraphernalia belonged to him. However, the witness also testified on cross examination that his brother, the appellant, was a heroin user. Because this information regarding illegal activity, drug use, was admitted without objection from the appellant, and it corroborates the erroneously admitted hearsay evidence of the first testifying officer to this effect, we find that the error was cured. Anderson v. State, 717 S.W.2d 622, 627 (Tex.Crim.App.1986); Syndex Corp. v. Dean, 820 S.W.2d 869 (Tex.Civ.App.--Austin 1991, writ denied); Bolin v. Smith, 294 S.W.2d 280, 283 (Tex.App.--Fort Worth 1956, writ ref'd n.r.e.). Because this later...