Homer Lee Shaw v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-429-CR





HOMER LEE SHAW,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 93-010, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing less than twenty-eight grams of cocaine and assessed punishment at imprisonment for five years and a $1000 fine. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.115 (West 1992). On the jury's recommendation, the district court suspended imposition of sentence and placed appellant on probation. In his only point of error, appellant claims the evidence is legally insufficient to sustain the conviction.

On the night in question, Lockhart police officers A. D. Bethea and Jess Tippie were watching a group of people gathered in front of a night club from a secluded area across the street. As they watched, two men left the club and walked to a parked car about twenty feet from the officers. These men were soon joined by a third man, appellant, who also left the club. One of the men, Troy Melancon, reached into the car and took out a plastic bag, which he placed on the hood of the car. Then he and appellant bent over the hood. Bethea stated that appellant "bent over the hood of the car, and raised his hand up to his nose, and appeared to be in a position as if to snort or sniff a controlled substance." The officers approached the men, who appeared to be surprised by their presence, and saw a line of white powder on the car hood. Appellant was holding a dollar bill that had been rolled into a tube, which he tried to put in his pocket. Bethea testified that currency rolled in this manner is commonly used to ingest cocaine through the nose. The officers placed the suspect powder in a plastic bag, which was later delivered to a Department of Public Safety chemist. The chemist testified that the substance in the bag was cocaine. The chemist said he did not weigh the cocaine because the amount was too small.

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). In circumstantial evidence cases, it is no longer necessary that the evidence exclude all reasonable hypotheses except the defendant's guilt. Geesa, 820 S.W.2d at 161.

To establish the unlawful possession of a controlled substance, the State must prove that the accused knowingly exercised care, custody, or control over the substance. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Possession need not be exclusive, but can be jointly exercised with other persons. Id. When possession is not exclusive, there must be additional facts affirmatively linking the accused to the contraband. Id. When the quantity of substance is too small to be measured, there must be evidence other than its mere possession to prove that the accused knew the nature of the substance. Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979).

Appellant argues that the evidence in this cause, while perhaps suggestive of guilt, does not amount to sufficient proof under the Jackson standard. We disagree. The jury could rationally conclude that the white powder on the hood of the car was cocaine. The jury also could rationally conclude that Melancon placed the cocaine on the hood of the car after appellant joined the group. From the testimony describing appellant bending over the hood of the car and placing his hand to his nose, and from his possession of the rolled up dollar bill, the jury could rationally infer that appellant inhaled a portion of the cocaine put there by Melancon. This behavior evidenced appellant's knowledge that the substance was cocaine. By inhaling cocaine, knowing it was cocaine, appellant knowingly exercised control over the cocaine.

Appellant suggests that the substance Melancon placed on the hood of his car on the night in question may not have been cocaine, and that the cocaine later found by the officers was a residue from some previous incident in which appellant was not involved. Alternatively, he hypothesizes that the powder seized by the officers was not cocaine, and that the positive test results were the product of previous contamination of the plastic bag or of the index card the officers used to scrape the powder into the bag. Even if this were a pre-Geesa prosecution, we would not consider either of these alternative hypotheses reasonable on this record.

We hold that the evidence in this cause, viewed in the light most favorable to the verdict, supports the jury's finding beyond a reasonable doubt that appellant knowingly possessed cocaine. The point of error is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: April 20, 1994

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