Hyett v. State , 2001 Tex. App. LEXIS 7006 ( 2001 )

OPINION

YATES, Justice.

A jury convicted appellant, Lee Allen Hyett, of possession of a controlled substance. The jury assessed punishment at five years’ confinement, enhanced by two prior felony drug convictions. In two points of error, appellant challenges (1) the legal and factual sufficiency of the evidence and (2) the trial court’s refusal to grant a mistrial for improper comments on appellant’s post-arrest silence. We affirm.

Background and Procedural History

On October 5, 1999, Deputy Kevin Morgan, with the Harris County Sheriffs Department, made a traffic stop at about 11:30 p.m. in Tomball. Appellant was alone in the car and as Deputy Morgan approached the car he saw appellant “moving around.” Using his flashlight to illuminate the inside of the car, Deputy Morgan saw appellant “jerk” his hand away from an air conditioning vent. Deputy Morgan testified that once appellant’s hand was removed from the vent he could see about one inch of a glass pipe “teetering” in the slats of the vent. Through his experience as a police officer, Deputy Morgan testified, he recognized the pipe as an item used for smoking crack cocaine. Deputy Morgan searched appellant’s car and retrieved the pipe. He could see burnt spots on the pipe. By use of a field test, Deputy Morgan positively identified the residue in the pipe as cocaine. He then placed appellant under arrest. The pipe was transported to the Harris County Medical Examiner’s office for testing.

Richele Howelton, a forensic chemist at the Harris County Medical Examiner’s office in the controlled substance laboratory, tested the pipe. Howelton testified that the burnt, beige, powdery residue on the pipe was crack cocaine in an amount of less than ten milligrams, which is less than one gram. Appellant did not testify at the guilt/innocence or punishment phase of his trial. The jury convicted appellant of possession of cocaine and assessed punishment at five years’ confinement. This appeal followed.

Legal and Factual Sufficiency

In his first point of error, appellant claims the evidence is legally and factually insufficient to support his conviction for possession of cocaine. We apply different standards when reviewing the evidence for legal and factual sufficiency.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense 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); Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000). If a reviewing court determines the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal because if the evidence is insufficient under Jackson, the case should never have been submitted to the jury. See Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. In a legal sufficiency challenge, we do not re-weigh the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).

In reviewing factual sufficiency, we do not view the evidence “in the light most favorable to the prosecution.” Cain v. State, 958 S.W.2d 404 (Tex.Crim.App.1997). Rather we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates the proof of guilt is either so obviously weak as to undermine confidence in the jury’s determination, or, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App.2000).

A person commits an offense if that person knowingly or intentionally possesses less than one gram of cocaine. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon Supp.2001). When an accused is charged with unlawful possession of cocaine, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. See Linton v. State, 15 S.W.3d 615, 619 (Tex.App.—Houston [14th Dist.] 2000, pet. refd). While the element of possession may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so that one may reasonably infer the defendant knew of the contraband’s existence and exercised control over it. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). The thrust of appellant’s complaint is that the State did not affirmatively link him to the cocaine. We disagree.

Circumstantial evidence relevant to establish an “affirmative link” between the appellant and the contraband include: (1) appellant’s presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant’s proximity to and accessibility of the narcotic; (4) whether the appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d). Notwithstanding the preceding laundry list of possible links, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Porter v. State, 873 S.W.2d 729, 732 (Tex.App.—Dallas 1994, pet. ref’d). Rather, affirmative links are established by a totality of the circumstances. See Sosa v. State, 845 S.W.2d 479, 483-84 (Tex.App.—Houston [1st Dist.] 1993, pet. ref’d) (finding the totality of the circumstances was of such a character that the jury reasonably could conclude the defendant was aware of the contraband and exercised control over it). In this case, no less than seven of the suggested links have been met.

Appellant was the sole occupant of the car where the pipe was found. The test results of that pipe indicate the burnt, beige, powdery residue was crack cocaine. Deputy Morgan testified crack cocaine is an odorless substance. He further testified appellant’s eyes were “glassy,” a sign of drug use. Appellant disputes this allegation through two witnesses who claim his “glassy” eye condition resulted from crying earlier in the day. However, such testimony merely contradicts Deputy Morgan’s testimony and is a conflict for the jury to resolve. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000).

Appellant further contends the evidence is legally insufficient because the cocaine was not visible to the naked eye and the residue is not considered a measurable amount. Although Officer Morgan testified he did not see a “white residue” of cocaine on the pipe, he did see “blackened burnt spots.” Howelton, the chemist, testified the “beige powdery residue” in the pipe was “visible with the eye.” Further, she specifically stated a positive test of the residue “indicated that it was cocaine in the amount of less than ten milligrams.”¹ In any event, the Court of Criminal Appeals has held there is no requirement that a controlled substance must be visible and measurable to support a conviction for possession of contraband. See King v. State, 895 S.W.2d 701, 702-04 (Tex.Crim.App.1995); see also Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995) (finding it would be error if we were to “requir[e] the controlled substance to be visible to the naked eye in order to support appellant’s conviction. Visibility is not an element of the offense of possession of a controlled substance.”).

Next, appellant disputes his control over the cocaine by claiming he is not the owner of the car. However, the determining issue is control of the car at the time the contraband is found, not ownership. See Villegas v. State, 871 S.W.2d 894 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Appellant’s mother, the owner, testified she was in the car fifteen minutes prior to sending appellant on an errand in it. She testified she sat in the middle front seat, adjusted the air conditioning vent, and at no time saw anything like a glass tube in the vent or in the car. Indeed, both of appellant’s witnesses testified they did not see the pipe in the vent nearly fifteen minutes before appellant drove in the car alone.

Deputy Morgan testified that he saw the pipe “teetering” in the slats of the vent, in his opinion, in such a way that it would not have remained there if the car was moving. He also testified the pipe was in plain view when appellant “jerked” his hand away from the vent. In connection with the other established links, the fact that appellant was the sole occupant in the vehicle, the pipe was not present fifteen minutes prior to appellant’s use of the vehicle, the contraband was in plain view and it was located in appellant’s close proximity is sufficient to prove the first element of control. See Linton, 15 S.W.3d at 619; Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Appellant claims the evidence is insufficient to support the second element that he knowingly possessed cocaine. Without an admission by the accused, knowledge may be inferred from the circumstances. Linton, 15 S.W.3d at 618. The evidence is legally sufficient if the combined and cumulative effect of all the incriminating circumstances point to appellant’s guilt. See Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983). Here, because appellant did not testify, the factual affirmative links that establish control may also be used to show appellant’s knowledge. After viewing the evidence in the light most favorable to the prosecution, we believe that a rational trier of fact could have found the essential elements of the offense of possession of cocaine.

Appellant also claims the evidence is factually insufficient to support his conviction for possession of cocaine. In conducting a factual sufficiency review, we only exercise our fact jurisdiction to prevent a clearly wrong and unjust result. See Wesbrook, 29 S.W.3d at 112. We do not find evidence in the record that greatly outweighs the evidence supporting the trial court’s judgment. For the reasons discussed above, the jury’s decision was not so contrary to the weight of the evidence as to be clearly wrong and unjust.

We conclude that the State presented legally and factually sufficient evidence to the jury to show that appellant was in possession of cocaine. Appellant’s first point of error is overruled.

Post-Arrest Silence

In his second point of error, appellant claims the trial court erred in denying his motion for mistrial based on the State’s comment on his post-arrest silence.² During the State’s examination of Deputy Morgan, the following exchange took place:

Prosecutor: Did the defendant ever deny at the scene that that’s his pipe?

Mr. Jacobs [Defense Counsel]: Object to that, Your Honor. Ask the jury to be instructed to disregard that question.

The Court: Members of the jury, disregard the last statement, question and the answer of the officer.

Prosecutor: Did he ever say: Hey that’s not my pipe.

Mr. Jacobs: I object to him going into that area. He’s trying to—

The Court: Sustained.

Trial counsel then moved for a mistrial, which was denied, and the trial court again instructed the jury to disregard the question.

When the trial court sustains an objection and instructs the jury to disregard, but denies appellant’s motion for a mistrial, the question is whether the trial court erred in denying the mistrial. Sauceda v. State, 859 S.W.2d 469, 474 (Tex.App.—Dallas 1993, pet. ref’d). “Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.” Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996); see also Ford v. State, 14 S.W.3d 382, 394 (Tex.App.—Houston [14th Dist.] 2000, no pet.). The asking of an improper question, by itself, will seldom call for a mistrial. Moore v. State, 882 S.W.2d 844, 847 (Tex.Crim.App.1994). Further, an instruction to disregard an improper comment on appellant’s post-arrest silence is generally sufficient to cure any harm. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.1995). In this case, the witness never answered the question, the trial court sustained appellant’s objection and twice instructed the jury to disregard. To the extent that the question was objectionable, we find that it did not rise to the level necessary to warrant the granting of a mistrial. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

WITTIG, J., dissenting.

1 . In light of the above facts, we respectfully note our disagreement with the dissent's characterization of the evidence as constituting an "unmeasurable” and "invisible” amount of cocaine.

2 . Appellant also cites two questions regarding his relatives' failure to contact the police after appellant's arrest. However, this court has previously held these type of questions directed solely to defense witnesses and which challenge the witnesses credibility do not constitute a comment on the defendant’s post-arrest silence. Abney v. State, 1 S.W.3d 271, 276 (Tex.App.—Houston [14th Dist] 1999, pet. ref’d). Further, cross-examination of a witness' silence "under circumstances in which [s]he would be expected to speak, may be used to impeach the witness.” Montoya v. State, 744 S.W.2d 15, 27 (Tex.Crim.App.1987).