Peter Paul Walkoviak v. State ( 2004 )

In The

Court of Appeals

For The  

First District of Texas

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NO. 01-02-01131-CR

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PETER PAUL WALKOVIAK, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court  

Harris County, Texas

Trial Court Cause No. 907876

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MEMORANDUM OPINION

               Appellant, Peter Paul Walkoviak, was convicted by a jury of possession of less than one gram of heroin. The jury assessed his punishment at 20 years’ imprisonment and a $5,000 fine. In six points of error, appellant contends that (1) the hypothetical scenario used by the trial court regarding punishment during voir dire tainted the venire panel, denying appellant a fair and impartial jury; (2) the State’s reference during closing argument to this hypothetical scenario was reversible error; (3) the evidence was legally and factually insufficient to sustain his conviction because the State failed to affirmatively link appellant to the contraband by showing that he was aware of, and exercised control over, the contraband. We affirm.

Facts

               Appellant, his wife, his brother, and his brother’s girlfriend were sitting in appellant’s car, parked outside a Houston-area Home Depot at around 7:30 p.m. Appellant was in the driver’s seat, his brother was in the front passenger seat, and the women were in the back seat. Darrell Williams, an off-duty police officer working as a security guard for Home Depot, spotted the car and watched it for about five minutes. When no one got into or out of the car during that time, Williams decided to investigate. He walked over to the car, looked inside, and saw that both appellant and his brother had syringes in their laps. As Williams watched, appellant held a spoon with a brown liquid in it as his brother held a lighter underneath the spoon. After one of the car’s occupants saw Williams and alerted the others, all of them appeared to be startled. Williams jumped back, drew his gun, ordered everyone to get out of the car, and called for backup. When another officer arrived at the scene, Williams gave her a plastic bag and a spoon he had recovered. Both the bag and the spoon tested positive for traces of heroin. In addition, the officers found syringes throughout the car, drug paraphernalia in a pocket on the driver’s side door, a marijuana joint, and cocaine residue.

               Appellant’s wife told a different version of the events. She testified that she, appellant, and the brother’s girlfriend all went into the Home Depot while appellant’s brother remained in the car. When the three of them returned to the car, they discovered appellant’s brother using drugs; appellant became upset and was trying to get rid of the drug paraphernalia when the officer approached the car. Appellant’s brother reiterated this story, and insisted that appellant knew nothing about his having drugs in the car.

Trial Court’s Comments to Venire Panel

               In his first point of error, appellant complains that the jury was tainted by the trial court’s use of a hypothetical with facts “virtually identical” to those in this case. The State contends that appellant waived the error because he did not instantly object, and because the error complained of in the trial court is not the same error raised on appeal. Assuming, without deciding, that appellant preserved error, we will address the merits of appellant’s argument.

                 Standard of Review

               A trial court should not make a comment that conveys to the jury the court’s opinion of the case before it. Tex. Code Crim. Proc. Ann. art. 38.05(Vernon 2004). However, the court has the right to try to qualify the venire panel and to determine whether it would be able to follow the law and consider the entire range of punishment. Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987). It is permissible to use a hypothetical situation to explain the application of the law, but improper to ask how the potential jurors would respond to the particular circumstances presented in the hypothetical. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). The court abuses its discretion only when its comments are reasonably calculated to benefit the State or prejudice the defendant. Ford v. State, 14 S.W.3d 382, 393 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Gardner, 733 S.W.2d at 210).

               Analysis

               The trial court was attempting to qualify the venire members by asking them whether they could consider the full range of punishment for possession of less than one gram of a controlled substance, 6 months to 2 years if no enhancements, or 2 to 20 years with enhancements. Several jurors had stated that they would be unable to consider any punishment, even the minimum 6 months, for possession of that amount of a controlled substance. Following this exchange, the prosecutor asked whether the members of the venire could consider the maximum punishment of 20 years. When a juror stated that he did not think he could sentence someone to 20 years, the court intervened and began to question the venire members about whether they could ever sentence someone to 20 years; several stated they could not consider the maximum punishment under any circumstances. At that point the court made the comments appellant complains about:

THE COURT: No matter what the facts are. Ya’ll aren’t using your imagination very well because you know I’ve already told you the State could put on any – all kind of evidence, anything that’s relevant to punishment. What if you convicted him of possession less than a gram but then in the punishment phase you hear testimony that he’s been to the penitentiary 3 times before and he goes around to elementary schools and tries to inject children with Heroin and get them addicted to Heroin and never prosecuted for that but then you have evidence to that and he’s a horrible person and done all these bad things could you never consider 20 years? I mean can you imagine that you might?

               At the conclusion of the trial court’s remarks, the prosecutor polled the potential jurors who had previously stated that they could never assess the maximum punishment, and each affirmed his prior statement. Appellant’s trial counsel moved to quash the jury “because I believe that when [the Court] stated it — gave the fact situation somebody injecting children with Heroin, been in the penitentiary 2 or 3 times I believe that the Court has tainted the jury.” The court denied the motion and proceeded with voir dire.

               Appellant contends that the hypothetical used was virtually identical to the facts of his case. The record does not bear out this argument. Appellant was in a car with three other adults, and was not in the vicinity of a school. He certainly was not in a school yard injecting children with heroin, nor was there testimony at the guilt-innocence or punishment phase indicating that he was a “horrible” person. The only similarity between the hypothetical scenario and appellant’s history was that he had been in the penitentiary six times, while the trial court hypothesized a person who had been in the penitentiary three times. The trial court made it clear that it was employing a hypothetical situation and did not attempt to tie it to appellant or ask the venire members to commit to those hypothetical facts. In addition, appellant stipulated to his previous felony convictions for drug possession, forgery, burglary, and murder.

               Given the dissimilarities between the hypothetical and actual situation, the use of obvious hyperbole, and appellant’s stipulations, we are not persuaded that the trial court’s comments were reasonably calculated to, or did, benefit the State or prejudice the defendant. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to quash.

               We overrule the first point of error.

Jury Argument

               In his second point of error, appellant contends that the State’s reference in closing argument to the hypothetical posed by the trial court was reversible error. Appellant objected at trial that the State’s remarks were inflammatory and outside the record. On appeal, however, he argues that the State encouraged the jury to believe that a 20-year sentence was appropriate, and concedes that his complaint on appeal does not comport with the trial objection.

               When the argument on appeal does not comport with the argument made at trial, any error is waived. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998).

               We overrule the second point of error.

Sufficiency of the Evidence

               In his third and fourth points of error, appellant contends that the State did not affirmatively link him to the drugs; thus, he argues that the evidence was legally and factually insufficient to sustain his conviction. In his fifth and sixth points of error, appellant contends the State did not prove he had enough time to terminate his control of his brother’s heroin as he was trying to get rid of it. We analyze points of error three through six together.

               Proof of Possession

               To prove unlawful possession of a controlled substance, the State must establish that the accused (1) exercised care, control, custody, or management over the contraband, (2) was conscious of his connection with it, and (3) knew the matter was contraband. Tex. Health & Safety Code Ann. §§ 481.002, 481.115 (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When, as here, contraband is not found on the appellant’s person, the evidence must affirmatively link it to the defendant so that it can be reasonably inferred he knew about it and exercised control over it. Roberson, 80 S.W.3d at 735.

               The factors that establish affirmative links include whether (1) the defendant was present when the drugs were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the drugs and had access to them; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) there was an odor of drugs; (10) the defendant owned or had the right to possess the place where the drugs were found; (11) the drugs were found in an enclosed place; (12) the amount of drugs found was significant; (13) the defendant possessed weapons; and (14) the defendant possessed a large amount of cash. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Although courts recognize many non-exhaustive factors that may constitute affirmative links, the number of factors is not as important as the degree to which they, alone or together, tend affirmatively to link the accused to the drug. Id. Evidence that affirmatively links the accused to the drugs must establish a connection that was more than fortuitous. Brown, 911 S.W.2d at 747.

               Standard of Review

               We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

               We begin the factual-sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof of beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 482. Our evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to give contradictory testimonial evidence because that question depends on how the fact-finder evaluates credibility and demeanor. Id. at 409. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407.   

               Evidence of Affirmative Links

               The crux of appellant’s challenge to the sufficiency of the evidence is twofold: (1) it was “simply not credible for the officer to have been able to observe precisely what was going on inside the vehicle” because it was nighttime, and, therefore, the officer’s testimony was not sufficient to link appellant to the drugs; (2) appellant did not have control over his brother’s heroin for a long enough period of time that he could have terminated his control over it before being seen by the officer.

We reject both arguments. The State clearly established sufficient affirmative links.

               The record shows that appellant was present when the drugs were found; the contraband was in plain view; appellant was in proximity to the drugs and had access to them; the car contained other contraband and other drug paraphernalia; and appellant owned the car in which the drugs were found. The officer testified there was enough light for him to be able to see inside the car. He testified that he saw a syringe in appellant’s lap and saw appellant holding a spoon while his brother held a lighter underneath the spoon. The officer also testified that he watched the car for five minutes before approaching it, which gave appellant more than enough time to relinquish control of the heroin, if it had belonged only to his brother. The jury clearly believed the officer’s testimony, not appellant’s wife’s and brother’s version of the story, and we are not at liberty to substitute our judgment for that of the fact-finder. See Cain, 958 S.W.2d at 407.

               We hold that the evidence was both legally and factually sufficient to affirmatively link appellant to the heroin. We overrule points of error three through six.

Conclusion

               We affirm the trial court’s judgment.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).