Scott v. State

• Decision Date: 20 February 1992
• Docket Number: No. 05-90-01065-CR,05-90-01065-CR
• Citation: 825 S.W.2d 521
• Parties: Mark Allen SCOTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 521

825 S.W.2d 521

Mark Allen SCOTT, Appellant, v. The STATE of Texas, Appellee.

No. 05-90-01065-CR.

Court of Appeals of Texas Dallas.

Feb. 20, 1992.

Rehearing Denied March 24, 1992.

Michelle Phillips Scheef, Richardson, for appellant.

Pamela Sullivan Berdanier, Dallas, for appellee.

Before BAKER, THOMAS and WHITTINGTON ¹, JJ.

OPINION

THOMAS, Justice.

Mark Allen Scott appeals his jury conviction of the offense of possession of cocaine wherein the trial court assessed punishment, enhanced by two prior convictions, at thirty years' confinement. In two points of error, Scott asserts that: (1) the evidence was insufficient to prove that he knowingly possessed cocaine; and (2) the trial court erred when it denied his motion to allow an independent chemist to test the substance. We overrule both points and affirm the trial court's judgment.

FACTUAL BACKGROUND

The police arrested Scott after he drove from the parking lot of a teenage dance club. In a subsequent search, police discovered, hidden in the groin area inside Scott's pants, a large baggie containing several smaller baggies. The smaller baggies contained substances resembling paper squares of LSD, powdered cocaine, crack cocaine, marijuana cigarettes, hashish, and ecstasy tablets. The paper squares, tablets, and material resembling cocaine and crack cocaine tested negative for controlled substances. An analysis on one of the two baggies containing a white powder residue revealed that it contained 0.3 milligrams of cocaine.

SUFFICIENCY OF THE EVIDENCE "KNOWING POSSESSION"

In the first point of error, Scott contends that the evidence was insufficient to show that he knowingly possessed cocaine because the amount recovered was so small. When reviewing the sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether 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); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). To support this conviction, the State had to prove that Scott exercised care, custody, and control over the substance and that he knew that it was contraband. Herrera v. State, 561 S.W.2d 175, 179 (Tex.Crim.App.1978). Thus, knowledge of possession is an essential element of the crime. Reyes v. State, 480 S.W.2d 373, 374 (Tex.Crim.App.1972).

To support his contention that evidence of such a small amount is insufficient to establish "knowing possession" of a controlled substance, Scott relies on Coleman v. State, 545 S.W.2d 831 (Tex.Crim.App.1977). In Coleman, the Court of Criminal Appeals reversed a conviction that was based on a quantity of cocaine so small that it could be identified only by a microscope. 545 S.W.2d at 835. However, in the fourteen years since Coleman, several courts have held that small quantities of cocaine will suffice if the amount is visible. See Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.--Houston [1st Dist.] 1991, no pet.) (op. on reh'g.) (0.8 milligrams of cocaine); Manuel v. State, 782 S.W.2d 335, 337 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd) (2.2 milligrams of cocaine); Chavez v. State, 768 S.W.2d 366, 367-68 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd) (0.5 milligrams of cocaine). We also note that one court has upheld a conviction for possession of 0.3 milligrams of cocaine, the same amount at issue here. Alejandro v. State, 725 S.W.2d 510, 515 (Tex.App.--Houston [1st Dist.] 1987, no pet.).

In Alejandro, a chemist testified that the quantity would probably be just "a few specks of powder" that probably was visible without a microscope. 725 S.W.2d at 515. In our case, there is evidence of visibility, because the chemist testified that 0.3 milligrams of cocaine is visible to the eye as a very thin film of dust, comparable to one or two grains of salt. ² We conclude that, if the controlled substance can be seen and measured, the amount is sufficient to establish that the defendant knew it was a controlled substance. See Thomas, 807 S.W.2d at 789.

Further, even if the quantity was too minute to be measured or seen, other evidence can prove that the defendant knew the substance in his possession was a controlled substance. See Shults v. State, 575 S.W.2d 29, 30 (Tex.Crim.App.1979). Some additional factors in minute-possession cases that may be used to find the requisite knowledge include: (1) possession of other contraband; (2) possession of narcotic paraphernalia; (3) actions of the defendant; (4) sale or delivery of the contraband; and (5) proximity, accessibility, and location of the contraband. Miller v. State, 723 S.W.2d 789, 791-92 (Tex.App.--Dallas 1987), vacated on other grounds, 760 S.W.2d 259 (Tex.Crim.App.1988). This Court has previously held that, when a defendant's possession of a minute amount of a controlled substance is coupled with other factors sufficient to show guilty knowledge, the evidence is sufficient for conviction. Miller, 723 S.W.2d at 729. In the instant case, Scott possessed the cocaine on his person. It was hidden inside his pants in his groin area. The cocaine baggies were among several baggies containing what appeared to be various kinds of drugs. We hold that this evidence supports an inference of guilty knowledge. See Miller, 723 S.W.2d at 792. Accordingly, we overrule the first point of error.

REFUSAL TO ALLOW INDEPENDENT CHEMIST TO TEST SUBSTANCE

In his second point of error, Scott argues that the trial court erred in refusing to allow him to have an independent chemist test the alleged controlled substance. He contends that the refusal was egregious because the amount was so small and because the other substances tested negative. Under article 39.14 of the Texas Code of Criminal Procedure, a defendant has a right to have any alleged contraband tested by his own chemist if he makes a timely request for such an opportunity. See Mendoza v. State, 583 S.W.2d 396, 398 (Tex.Crim.App.1979); Terrell v. State, 521 S.W.2d 618, 619 (Tex.Crim.App.1975); Detmering v. State, 481 S.W.2d 863, 864 (Tex.Crim.App.1972). Denial of a timely motion to allow such inspection is reversible error. Terrell, 521 S.W.2d at 619; Detmering, 481 S.W.2d at 864.

The trial of this case was originally scheduled for April 30, 1990. On April 10, 1990, Scott filed eighteen pages of motions for production and inspection. The trial was then reset five times. On July 16, 1990, the trial court set both a pretrial hearing on the discovery motions and the trial on the merits for July 25, 1990. A few minutes before the pretrial hearing scheduled for July 25, Scott filed his "Notice of Motion Requesting a Sample of the Alleged Narcotics," seeking to have an independent chemist analyze the substance. The trial court denied the motion, stating, "It's too late." Because a pretrial hearing on discovery was set, the timeliness of Scott's request is governed by article 28.01 of the Texas Code of Criminal Procedure, which provides in relevant part:

Sec. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters.

TEX.CODE CRIM.PROC.ANN. art. 28.01, § 2 (Vernon 1989).

Scott acknowledges that the question of whether to hold a hearing on the motion rested within the trial court's discretion. See Writt v. State, 541 S.W.2d 424, 426 (Tex.Crim.App.1976); Baskin v. State, 672 S.W.2d 312, 314 (Tex.App.--San Antonio 1984, no pet.); TEX.CODE CRIM.PROC.ANN. art. 28.01, § 2 (Vernon 1989). However, once a trial court chooses to hold a hearing on the motion, it has little discretion under Mendoza and Detmering to deny or grant the discovery request. Thus, the issue is whether the trial court in ...