Harris v. State

781 S.W.2d 365, 1989 Tex. App. LEXIS 2684, 1989 WL 126318
CourtCourt of Appeals of Texas
DecidedOctober 26, 1989
DocketNo. A14-88-073-CR
StatusPublished
Cited by2 cases

This text of 781 S.W.2d 365 (Harris v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. State, 781 S.W.2d 365, 1989 Tex. App. LEXIS 2684, 1989 WL 126318 (Tex. Ct. App. 1989).

Opinion

[366]*366OPINION

DRAUGHN, Justice.

Lorron Bernard Harris, appellant, challenges his conviction for possession of cocaine on the basis of a ten-to-fifteen-minute lapse between the time undercover police officers saw him handle a plastic bag and their return to the scene, where they arrested him and two other men and seized a plastic bag containing cocaine. Appellant contends that the record does not provide sufficient evidence to affirmatively link him to the particular cocaine that was seized. A jury convicted and sentenced appellant to seven (7) years confinement in the Texas Department of Corrections. We affirm.

Following a tip from an informant, officers D.S. Berry and Donald DeBlanc of the Houston Police Department crawled beneath an abandoned house to conduct a late-night surveillance of possible drug-dealing in a parking lot near the Blues Lounge in Houston’s Third Ward. Officer Berry testified that from across the street he saw the appellant and Lonnie Houston standing in the parking lot two to three feet from the street. Appellant twice walked back to an iron, T-shaped clothesline post, reached into an open end of the “T” and removed a single, large plastic bag containing smaller baggies of a substance that Officer Berry presumed to be cocaine. Appellant then reached inside the large bag, removed something, replaced the bag in the open end of the “T” and brought the package which he had removed to one of several black males standing nearby. Officer Berry also testified he saw “more black men hand him [the appellant] money.”

Officer DeBlanc saw appellant twice remove from the clothesline post a large “plastic container” containing numerous smaller packages of a powdery substance he believed to be crack. He, too, saw appellant “exchanging money with some unknown black males.”

After conducting the surveillance for approximately fifteen (15) minutes, officers Berry and DeBlanc left the scene and returned to their van, parked three blocks away, to radio for a marked patrol unit to make the arrest. They waited five to 10 minutes, and when no patrol unit arrived, the officers put on bullet proof vests and raid jackets and returned to the parking lot, where they arrested appellant and Houston and retrieved a bag containing forty-two (42) rocks of cocaine from the clothesline post. The officers arrested a third person at the scene for public intoxication.

No drugs were found on appellant, and he was carrying only a comb, a cigarette, and two $5 bills.

In his first two points of error, appellant claims the evidence is insufficient to sustain his conviction. First, he contends that no one testified the item seized from the clothesline post was either the same or similar to the item the police officers observed appellant possessing during the surveillance. He contends, and rightfully so, that he is not charged with possessing drugs generally but for possessing the particular contraband that was seized. Second, he claims the evidence does not exclude all reasonable hypotheses of what could have transpired during the 10-to-15-minute gap between the time the officers saw him stash a bag in the clothesline post and their return to the scene, at which time they seized a bag containing cocaine.

The standard of review regarding sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, — U.S. -, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). To establish the unlawful possession of a controlled substance, the State must prove the accused exercised care, control, and management over the substance, and the accused knew the matter possessed was contraband. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App.1981); Sinor v. State, 612 S.W.2d 591, 592 (Tex.Crim.App.1981); Raleigh v. State, 740 [367]*367S.W.2d 25, 27 (Tex.App.-Houston [14th Dist.] 1987, no pet.). Possession means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed. Hausman v. State, 480 S.W.2d 721, 723 (Tex.Crim.App.1972). Further, proof that amounts only to a strong suspicion or mere probability is insufficient, Oaks v. State, 642 S.W.2d 174, 179 (Tex.Crim.App.1982) (en banc), and when the defendant was not in exclusive possession of the place where the contraband was found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances that affirmatively link the accused to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981).

It is true that many of the usual affirmative links are not alleged: the substance was not in open view, Hughes v. State, 612 S.W.2d 581, 582-83 (Tex.Crim.App.1981); the place where the contraband was found was not enclosed, Mendoza v. State, 583 S.W.2d 396, 397 (Tex.Crim.App.1979); the accused was not the owner of the place where the contraband was found, Moulden v. State, 576 S.W.2d 817, 820 (Tex.Crim.App.1978); nor were there fingerprints, Higgins v. State, 515 S.W.2d 268, 271 (Tex.Crim.App.1974), recent drug use or evidence thereof, Reyes v. State, 575 S.W.2d 38, 40 (Tex.Crim.App.1979), furtive gestures, Wilkes v. State, 572 S.W.2d 538, 540 (Tex.Crim.App.1978), or an attempt by appellant to flee from the scene. Waters v. State, 491 S.W.2d 119, 121 (Tex.Crim.App.1973).

In addition, we are somewhat disturbed by the ten to fifteen minutes that passed in which the officers did not observe either the appellant or the cocaine. However, the Court of Criminal Appeals has affirmed convictions of unlawful possession in cases in which a bag of LSD capsules went unobserved “for a few minutes,” Floyd v. State, 494 S.W.2d 828, 830 (Tex.Crim.App.1973), and a package of heroin was out of sight for three to five minutes while the arrest was being made and no other persons were seen in the immediate area. Noah v. State, 495 S.W.2d 260, 263 (Tex.Crim.App.1973).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harvey v. State
821 S.W.2d 389 (Court of Appeals of Texas, 1991)
Edwards v. State
807 S.W.2d 338 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
781 S.W.2d 365, 1989 Tex. App. LEXIS 2684, 1989 WL 126318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-state-texapp-1989.