Victor v State

• Decision Date: 13 May 1999
• Citation: 995 S.W.2d 216
• Parties: <!--995 S.W.2d 216 (Tex.App.-Houston 1999) KIM NOVELL VICTOR, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-97-00537-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 216

995 S.W.2d 216 (Tex.App.-Houston[14th.Dist.] 1999)

KIM NOVELL VICTOR, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-97-00537-CR

In The Fourteenth Court of Appeals

May 13, 1999.

On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 721,943

[Copyrighted Material Omitted] Panel consists of Justices MAURICE E.AMIDEI, EDELMAN, and Wittig.

MAJORITY OPINION

MAURICE AMIDEI, Justice.

Kim Novell Victor appeals his conviction by a jury for possession of less than one gram of cocaine. TEX. HEALTH & SAFETY CODE ANN. 481.115(b) (Vernon 1992 & Supp. 1999). The jury assessed his punishment at 16 years, enhanced by two prior felony convictions. In six points of error, appellant contends: (1) the evidence is factually insufficient to support his conviction for knowingly possessing cocaine; (2) the trial court erred in denying his request for a jury instruction to disregard illegally obtained evidence under article 38.23, Texas Code of Criminal Procedure; (3) the trial court erred in denying his Batson¹ motion; (4) the trial court erred in overruling his objection to the prosecutor's reference to an extraneous bad act; and (5) and (6) the police did not have probable cause to arrest appellant under the state and federal constitutions. We affirm.

On May 3, 1996, at about 6:30 a.m., Officers Mascheck and Parton interviewed Mae Lenford who reported that she had been sexually assaulted at her apartment in Houston earlier that morning. Ms. Lenford described her attacker as a black male, 5'9" tall, 210 pounds, with red hair, a very fair complexion, and wearing a red shirt and blue jeans. During the attack, Ms. Lenford scratched her attacker's face. She stated that the attacker said his name was "Chili."

At 12.50 p.m. that afternoon, the officers observed a car passenger not wearing a seatbelt. The officers stopped the car, driven by Galvan Dickson, to warn the passenger about the seat belt infraction. When the officers got to the car, a female passenger sitting in the backseat of the car got out, and walked away with the permission of the two officers. The female walked about 20 feet from the car where she stopped and talked to appellant. Officer Mascheck was still standing by Dickson's car when he noticed that appellant matched the description of Ms. Lenford's attacker. Mascheck then approached appellant, noticed some scratches on his face, and asked appellant for some identification. After briefly talking to appellant, Mascheck allowed him to leave. Mascheck then returned to the patrol car, where Dickson was sitting in the backseat. Mascheck overheard Dickson tell Officer Parton that appellant was Dickson's room mate, and that appellant came home at 6:00 a.m. that morning with scratches on his face. Realizing that appellant's arrival at home coincided with the time of the attack on Ms. Lenford, the officers then decided to detain appellant for further investigation.

Officers Mascheck and Parton located appellant in a convenience store a few minutes after they learned appellant came home at 6:00 a.m. with scratches on his face. Officer Mascheck told appellant that he was under investigation for sexual assault and escorted him to the patrol car, and then called his sergeant about the case. After learning of the violent assault upon Ms. Lenford and the close resemblance of appellant to the attacker, the sergeant authorized Officer Mascheck to arrest appellant and take him to the police station. At the police station, Officer Mascheck conducted a thorough search of appellant's pockets, waistband, socks and shoes. Mascheck found a crack pipe in appellant's right front pants pocket. Mascheck testified that the crack pipe was in a little pocket located above a regular pocket, "like a little watch pocket or a little coin pocket." Mascheck described the crack pipe as a piece of glass tubing, approximately four inches long, with steel wool in the end, and some "burnt residue" in the end. Mascheck stated that the burnt area and residue indicated to him that the crack pipe had been used to smoke crack cocaine, and "there was still some residue of crack cocaine in the pipe." Mascheck stated that "residue is what does not burn," and there is "some of it that melts and stays around the edge of the glass." Mascheck gave the crack pipe to Officer Parton for field testing. Another officer performed the field test that showed the presence of cocaine on the pipe. Officer Parton then put the pipe in a special envelope, and deposited the envelope and pipe in the narcotics lock box at the police station.

Debra Stephens, the police chemist, testified that the residue on the crack pipe tested positive for cocaine. Although the residue and cocaine were measurable, she further stated she could not determine the total amount of cocaine that was on the pipe without destroying the residue. She testified that, in her opinion, there was less than one gram of cocaine residue on the pipe.

In point one, appellant challenges the factual sufficiency of the evidence to support his conviction for knowingly possessing the cocaine residue found on the crack pipe. Appellant argues that the chemist did not specify an exact measured quantity of the residue in question, and the evidence is factually insufficient to prove that appellant knew the substance in his possession was cocaine. We disagree.

Under Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), a court of appeals reviews the factual sufficiency of the evidence when properly raised after a determination that the evidence is legally sufficient. Id. In conducting a factual sufficiency review, the court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In conducting a factual sufficiency review, the court of appeals reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination. Id. This review, however, must be appropriately deferential so as to avoid an appellate court's substituting its judgment for that of the jury. Id. If the court of appeals reverses on factual sufficiency grounds, it must detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient. Id. The appropriate remedy on reversal is a remand for a new trial. Id.

A factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). This court's evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Id. The appellate court maintains this deference to the fact findings, by finding fault only when "the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." Id.

To prove unlawful possession of a controlled substance, the State must prove: (1) that appellant exercised actual care, control and management over the contraband; and (2) that appellant had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995). The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband. Jackson v. State, 807 S.W.2d 387, 389 (Tex.App.-Houston[14th Dist.] 1991, pet. ref'd). If the controlled substance can be seen and measured, the amount is sufficient to establish the defendant knew it was a controlled substance. Mayes v. State, 831 S.W.2d 5, 7 (Tex.App.-Houston[1st Dist.]1992, no pet.); Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.-Houston[1st Dist]1991, no pet.); Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.-Houston[1st Dist.] 1991), pet. dism'd, 840 S.W.2d 958, 959 (Tex.Crim.App.1992).

In this case, the chemist testified that residue on the inside of the crack pipe was visible, and that it tested positive for cocaine. Although the amount of residue was measurable, the chemist did not attempt to determine an exact weight of the amount of cocaine in the pipe because she would have to use all of the residue in the pipe. In order to preserve the cocaine as evidence, the chemist did not quantitate the exact amount found in the crack pipe. She testified that, in her opinion, there was less than one gram of residue in the pipe. Because the amount in the pipe was less than one gram, the chemist stated there was no need to prove that it was any more than one gram.

Officer Mascheck testified that the pipe had some residue of crack cocaine in it, and the burnt area and residue indicated to him that the crack pipe had been used for smoking the crack cocaine. Mascheck testified that "residue is what does not burn," and there is "some of it that melts and stays around the edge of the glass." At the request of Officer Parton, another officer performed a field test that showed the presence of cocaine on the pipe.

In King, the chemist testified that the amount of cocaine present was too small to be measured. King, 895 S.W.2d at 703. The court of criminal appeals found the language in Shults v. State, 575 S.W.2d 29, 30 (Tex.Crim.App.1979) to be controlling. Id. Shults held that "when the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance." Shults, 575 S.W.2d at 30. "Therefore, the State must prove, through other evidence, that appellant had knowledge that the substance in his possession was cocaine." King, 895 S.W.2d at 703. In King, the residue containing the cocaine was visible on the crack pipe, but the amount of cocaine was unmeasurable,...