Reid v. State

• Decision Date: 31 March 1988
• Docket Number: No. 05-87-00224-CR,05-87-00224-CR
• Parties: Donovan A. REID, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 903

749 S.W.2d 903

Donovan A. REID, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-00224-CR.

Court of Appeals of Texas Dallas.

March 31, 1988.

Rehearing Denied May 9, 1988.

Roy L. Merrill, Dallas, for appellant.

John Vance, Dist. Atty., Michael A. Klein, Asst. Dist. Atty., Dallas, for appellee.

Before WHITHAM, McCLUNG and STEWART, JJ.

McCLUNG, Justice.

Donovan A. Reid was tried before a jury and convicted of possession of marijuana in an amount of five pounds or less but more than four ounces. Punishment was assessed at ten years in the Texas Department of Corrections and a five-thousand-dollar fine. In nine points of error, appellant contends that: (1) the evidence is insufficient to support his conviction; (2) improper evidence was introduced at trial; (3) the trial court erred in rejecting the jury's verdict finding appellant guilty of misdemeanor possession of marijuana; (4) the trial court erred in overruling appellant's objection to additional jury instructions; (5) the trial court erred in instructing a verdict of guilty; (6) the jury was allowed to separate without the consent of the appellant before they had returned a verdict; and (7) the trial court erred in overruling, without a hearing, appellant's motion to enforce the guaranties contained in the Texas Constitution against cruel and unusual punishment. Because we agree that the jury was improperly allowed to separate after receiving the charge, we reverse the judgment of the trial court and remand the cause for a new trial.

On June 17, 1986, at approximately 3:00 A.M., appellant and his companion were stopped by two Dallas police officers for driving with no headlights. When the patrol car pulled up behind appellant's automobile one officer noticed that the tags were expired on the vehicle. Appellant stopped his vehicle, jumped out of the car, and began walking up to the patrol car. He was ordered back into his vehicle. The officers approached appellant and his companion and asked for appellant's driver's license as well as his proof of liability insurance. Appellant replied that his license was in the trunk. He was then requested to leave the vehicle and step to the rear of the car. When appellant stepped from the automobile the officer nearest appellant observed that he was wearing a ballistics vest. Appellant was given a pat-down search which revealed a loaded pistol. Appellant's companion was also carrying a loaded pistol. Additional police officers were then called to the scene. The car was searched and inside the car was a large marijuana cigarette burning in the ashtray. Rolling paper and other drug related paraphernalia was also found in the interior of the car. A search of the trunk revealed appellant's expired New York state driver's license, as well as approximately $15,000 in cash, 400 packaged envelopes of marijuana weighing slightly under five pounds, and additional paraphernalia. Marijuana seeds were also found in appellant's front pocket. It was later discovered that the automobile was a Hertz rental unit which had been rented in the name of appellant's brother.

Appellant and his companion were then arrested. Appellant vigorously resisted arrest and during the course of the arrest bit one officer on the hand. After appellant was secured one officer "joked" to another officer that "I think what we ought to do is take the dope and the money and turn him loose and see how he can explain it." Appellant replied "It does (sic) make make [sic] any difference to me. I can make that much money in one run. I can make more money than you ever think of making".

In appellant's first point of error he asserts that the evidence is insufficient to support the conviction because there is no evidence that he had knowledge of the marijuana in the trunk of the car. In evaluating the sufficiency of the evidence for a criminal conviction, the standard is whether, "after viewing the 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, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). In order to sustain a conviction of possession of a controlled substance the state must show: (1) the accused exercised care, control and management of the contraband; and (2) the accused knew what he possessed was contraband. Humason v. State, 728 S.W.2d 363, 364 (Tex.Crim.App.1987); Dickey v. State, 693 S.W.2d 386, 389 (Tex.Crim.App.1984). Possession means more than being "where the action is"; it involves the exercise of dominion and control over the contraband allegedly possessed. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). Where the accused is not shown to be in exclusive control or possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge and control over the contraband unless there are additional independent facts and circumstances which link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Flores v. State, 650 S.W.2d 429, 430 (Tex.Crim.App.1983) There is no set "formula" of facts which would dictate a finding of an "affirmative link" sufficient to support an inference of knowing possession of contraband. Each case depends on the evidence adduced therein. See Humason, 728 S.W.2d at 367; Patterson v. State, 723 S.W.2d 308, 311 (Tex.App.--Austin 1987, pet. granted).

Being mindful of the above guidelines, we now examine the testimony in this case. When asked for his driver's license, the appellant told the officers that it was in the trunk. This statement was true and is probative evidence that appellant had knowledge of what was in the trunk, including the contraband. Appellant was also discovered wearing a bulletproof vest and carrying a loaded weapon. Appellant's companion was also heavily armed. There was approximately $15,000 in cash and bags of marijuana packaged for distribution in the trunk. A rational trier of fact could only conclude that appellant and his companion were exercising dominion and control over the cash and marijuana. Indeed, appellant and his companion were equipped and ready to protect and defend their illegal cargo from anyone of a mind to take it from them. Further, appellant made an incriminating statement at the scene and attempted to flee from the officers. In addition, appellant was found with marijuana on his person and a lit marijuana cigarette was in the ashtray of the car. We conclude that the evidence is sufficient to support the conviction. Appellant's first point of error is overruled.

In appellant's second point of error he maintains that the trial court erred in allowing a police officer to testify that when she saw appellant wearing a ballistics vest and carrying a pistol that it went through her mind that appellant "probably would have shot me. That's what I thought he was going to do." Assuming, arguendo, such testimony was inadmissible we hold any error in admitting this testimony was harmless. The evidence as to appellant's guilt was overwhelming. In addition, the trial court sentenced appellant and, because the trial court is presumed to disregard inadmissible evidence, e.g. Johnson v. State, 478 S.W.2d 442, 444 (Tex.Crim.App.1972), we presume the testimony did not affect his sentence, especially considering the totality of the facts in the record here. Appellant's second point of error is overruled.

Appellant next complains that the trial court admitted over objection the following testimony:

Q. (By Mr. Stalcup) Officer Byerly, why did you not take fingerprints on the evidence that you offered--tagged and offered into the property room?

MR. MERRILL: Further object on--it calls for the state of mind of the witness.

THE COURT: Overruled. You may answer.

A. (By the Witness) I felt no need for fingerprinting any of the evidence.

Q. (By Mr. Stalcup) Okay. Why not?

MR. MERRILL: Object to that. It calls for opinion on--invasion of province of the jury and calls for opinion on guilt or innocence of the defendant, co-defendants. Highly prejudicial, Your Honor. Hearsay. No proper predicate for that kind of opinion testimony. Respectfully object on all those grounds.

THE COURT: Mr. Stalcup?

MR. STALCUP: Your Honor the State would submit that the question and response had--has nothing to do with hearsay and the questions calls for the reason he didn't take fingerprints of the evidence that was placed in the property room after defense counsel opened the door to fingerprints on this particular evidence and this particular case. We find it's relevant to the issue at hand.

THE COURT: All right. Overrule the objection. You may answer.

Q. (By Mr. Stalcup) You may proceed.

A. (By the Witness) I do not--I felt no need to fingerprint anything that I found in his possession.

We must initially state that we do not agree with appellant that this testimony was "hearsay", "highly prejudicial" or that "no proper predicate" was laid. On cross-examination, appellant educed from this witness that he had made no effort to preserve any fingerprints that might have been on the bags of marijuana in the trunk. Appellant's attorney also asked this witness if the reason he was testifying against appellant was because charges alleging aggravated assault by appellant against another officer had been dropped. In sum, the cross-examination was designed to show that this officer may have been angry at appellant because appellant had injured a fellow officer and had not been prosecuted. Consequently, the officer may be out to "get" appellant and might even go so far as not fingerprinting the bags of marijuana because appellant's prints may not be on them. On redirect examination, the testimony complained of by appellant was admitted. We hold the trial court properly admitted this testimony. First, this line of questioning was invited by appellant's attempt to discredit the...