Mickle A. Nelson v. State

NO. 07-03-0179-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 15, 2004
______________________________
MICKLE A. NELSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-401,159; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant Mickle A. Nelson contests his conviction for possessing a controlled
substance (cocaine). Through two issues, he contends that the evidence was both legally
and factually insufficient to support the conviction. We affirm the judgment of the trial
court.
1
John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).
Appellant was indicted for the offense of possessing, with intent to deliver, a
controlled substance. However, the trial court incorporated into its jury charge the lesser
included offense of simple possession. See Hanks v. State, 104 S.W.3d 695, 699 -700
(Tex. App.–El Paso 2003, pet. granted in part) (stating that simple possession is a lesser-
included offense of possession with intent to deliver). Neither party objected to the trial
court’s action. Thereafter, the jury found appellant guilty of the lesser offense.
By failing to object to the inclusion of the lesser-included offense in the jury charge,
an appellant is estopped from complaining on appeal that the evidence is legally or
factually insufficient to support the verdict. Jaramillo v. State, No. 07-00-0077-CR, 2000
Tex. App. LEXIS 7697 at 2-3 (Tex. App.–Amarillo November 13, 2000, pet. ref’d); Otting v.
State, 8 S.W.3d 681, 686-87 (Tex. App.–Austin 1999, pet. ref’d); Reaves v. State, 970
S.W.2d 111, 118 (Tex. App.–Dallas 1998, no pet.); Bisco v. State, 964 S.W.2d 29, 30 (Tex.
App.–Tyler 1997, pet. ref’d); Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.–Fort Worth
1997, pet. ref’d); see Tamez v. State, 865 S.W.2d 518, 519-20 (Tex. App.–Corpus Christi
1993, pet. ref’d) (applying the rule to issues involving legal sufficiency). Here, appellant
did not object to the inclusion of the lesser offense below. Thus, he cannot now question
either the legal or factual sufficiency of the evidence underlying his conviction. Id.
Nevertheless, we reviewed the evidence of record and find it both legally and
factually sufficient to illustrate that he knowingly possessed the cocaine found in the car.
Though appellant was a passenger, the 13 cocaine rocks were found in a plastic gray case
sticking out between the seat and the center armrest on the passenger side of the vehicle.
Furthermore, appellant had on his person a crack cocaine pipe. So too were two
2
marijuana cigarette butts found in the car ashtray, and the arresting officer noted the smell
of burned marijuana in the vehicle before making the arrests. The smell of marijuana, the
presence of marijuana cigarette butts within appellant’s reach, the presence of a large
amount of crack cocaine next to appellant (as opposed to the driver of the car) and
appellant’s possession of a device used to ingest contraband of the ilk discovered are
affirmative links upon which a jury could conclude beyond reasonable doubt that appellant
knowingly possessed the cocaine. And, though other evidence illustrated that the driver
may have possessed the contraband, it was not so weighty as to overwhelm that which
also linked appellant to the drug.
Accordingly, we overrule both issues and affirm the judgment.
Brian Quinn
Justice
Do not publish.
3