Fernandez Saenz v. State

802 S.W.2d 765, 1990 Tex. App. LEXIS 2652, 1990 WL 191439

• Court: Court of Appeals of Texas
• Decided: November 1, 1990
• Docket: No. B14-89-00986-CR
• Status: Published

Opinions

OPINION

ROBERTSON, Justice.

The jury rejected appellant’s not guilty plea to the possession of cocaine; he admitted the previous conviction alleged for enhancement, and the trial judge assessed punishment at confinement for eight years. Issues on appeal concern the admissibility of evidence of a claimed extraneous offense, jury argument and the sufficiency of the evidence. We affirm.

After having conducted a lengthy surveillance for four or five days of a certain apartment in Pasadena, during which time appellant was observed entering and/or exiting the apartment several times (once by using a key), officers of that city secured a search warrant and, shortly after midnight, proceeded to execute it. Appellant was observed on the outside of the apartment; he got into the passenger side of an automobile with a another person who drove “about two driveways down still in the apartment project.” After appellant alighted from the automobile, officer Dumas went to a nearby convenience store where he met “a subject” and recovered from him a quarter ounce of cocaine. Dumas directed other officers at the apartment project to place appellant under arrest. Upon searching him, marked money belonging to the Pasadena Police Department, which Dumas had released less than an hour before, was recovered from appellant. During the search of the apartment which the evidence shows was leased in the name of two females, one of whom was present, the officers found both cocaine and marijuana. ' Among other articles recovered were small “ziploc clear plastic bags” containing residue and small amounts of powdered cocaine, hemostats, marijuana smoking pipes, a cigarette roller, razor blades, a funnel and a glass tube all containing a white powder cocaine residue. Some of the drugs and drug paraphernalia were found in the east bedroom where the officers also found a final electricity bill addressed to appellant from the power company for another address and a Texas Vehicle Registration receipt issued in the appellant’s name. Appellant did not testify at trial. His sister testified he did not live in the searched apartment but another apartment in the project. She stated he and his roommate were friends with the occupants of the searched apartment.

In his seventh point of error appellant contends the evidence is insufficient to show that he had care, custody and control over the apartment where the drugs were found. Viewing the evidence in the light most favorable to the verdict, as we are required to do, Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989), we find the above evidence amply sufficient to support the conviction. Accordingly, appellant’s point of error is overruled.

In his first and third points of error, appellant contends the trial court erred in admitting the testimony concerning the recovery of the marked money from appellant and the recovery of the quarter ounce of cocaine from the “subject.” In his second and fourth points of error appellant contends the court erred in permitting the prosecutor to refer to the recovery of the money and the cocaine in argument to the jury. Appellant argues the evidence was inadmissible because it showed an extraneous offense. We do not agree. .

We first notice, as pointed out by the state in it’s brief, that the record does not specifically show that the quarter ounce of cocaine was recovered from “the subject”, which officer Dumas met at the convenience store, rather than appellant. However, based upon the testimony of Dumas that he “recovered a quarter ounce of cocaine” and “ordered [appellant] taken into custody and the money recovered,” we agree that appellant’s conclusion that the cocaine was recovered from “the subject” is a reasonable deduction from the evidence and we will so construe it.

In order to sustain a conviction for possession of a controlled substance, the state must show that the accused exercised care, control and management of the contraband and that the accused knew what he possessed was contraband. Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987). And where the accused is not in exclusive control or possession of the place where the contraband is located, the court of criminal appeals has held that it cannot be concluded that the accused had knowledge and control over the contraband unless there are additional facts and circumstances linking the accused to the contraband. Cude v. State, 716 S.W.2d 46 (Tex.Crim.App.1986).

We agree with the state that the evidence that within less than an hour after the police officer released marked money to a “subject”, that after appellant was seen in the company of that “subject” the officers recovered from appellant the marked money previously given to the “subject”, and from the “subject” a quarter ounce of cocaine was recovered is probative evidence linking appellant to the contraband found in the apartment. See: Reid v. State, 749 S.W.2d 903 (Tex.App.— Dallas 1988, pet. ref d). The trial court did not err in admitting the evidence; consequently, the prosecutor was properly permitted to utilize this evidence in final argument to the jury. Appellant’s first four points of error are overruled.

In his fifth point of error appellant contends the court erred in permitting the prosecutor during argument “to urge the jury to speculate on the basis for the search warrant that led to the discovery of the drugs found in the apartment.” The basis for his complaint is that during her final argument, the prosecutor made five references to the fact that the police officers had a search warrant. On two of the occasions, the prosecutor stated that the search warrant was “based on something” and, during another reference to the search warrant, she stated “you can use your reasoning as to why an officer had a search warrant.” Appellant argues that since hearsay relating to probable cause is not admissible before the jury, the argument of the prosecutor concerning the search warrant invited the jury to speculate on matters not in evidence before them, as condemned by Everett v. State, 707 S.W.2d 638 (Tex.Crim.App.1986) and eases cited therein.

While the argument that the officers had a search warrant was proper (because the evidence showed they had served one) the further argument of the prosecutor that “it must have been based on something” was clearly improper because it invited the jury to speculate on evidence not before them. However, when we view the argument as a whole and in the context in which it was made, we do not find the argument to warrant a reversal. As stated by the court of criminal appeals in Brooks v. State, 642 S.W.2d 791 (Tex.Crim.App.1982): “statements by counsel will not constitute reversible error unless, in light of the record as a whole, the statements are extreme or manifestly improper, violative of a mandatory statute, or inject new facts harmful to the accused into the proceeding.” Appellant’s fifth point is overruled.

Finally, in his sixth point of error, appellant contends the trial court erred in permitting the prosecutor to argue that appellant had something on him at the time of his arrest. The actual comments of the prosecutor; the objection by defense counsel, and the ruling of the court was:

There is a lab report there from a chemist who worked it up with the medical and the scientific analyzation that you have in your possession that goes back with you that you can read and see whether or not the test concluded that what he possessed in that bedroom and what he had on him was cocaine. So all we are asking you to do now—

MR. PINK: I object. It’s an improper statement. She said something about what he had on him. The defendant had nothing on him. It’s an improper misstatement of the evidence.

THE COURT: The jury has heard the evidence. They will make a determination of what the facts are. I overrule your objection.

In view of the uncertainty of the testimony concerning from whom the quarter ounce of cocaine was recovered, it appears to us that the ruling of the court was proper — he left the issue for the jury’s determination. Appellant’s sixth point is overruled.

The judgment of the trial court is affirmed.

SEARS, J., dissents.