Jenkins v. State

870 S.W.2d 626
CourtCourt of Appeals of Texas
DecidedFebruary 24, 1994
Docket01-92-01204-CR
StatusPublished
Cited by64 cases

This text of 870 S.W.2d 626 (Jenkins 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
Jenkins v. State, 870 S.W.2d 626 (Tex. Ct. App. 1994).

Opinions

OPINION

OLIVER-PARROTT, Chief Justice.

The appellant was found guilty by a jury of possession of a controlled substance. The court found two enhancement paragraphs true and assessed punishment at 50-years confinement and a $10,000 fine. We affirm.

Summary of the Facts

Detectives Moser and Merling went to a bingo parlor which they knew appellant fre[628]*628quented. They were there to execute an arrest warrant on a separate charge. Once inside the bingo parlor, Detective Moser recognized appellant, approached him, and asked him to step toward the rear of the building. At the rear of the building, appellant was placed under arrest and escorted outside by the detectives. Appellant was then searched incident to his arrest. In appellant’s right, front, pants pocket Detective Moser found a small tube containing a white powdery residue.

Detective Moser conducted a field test which indicated the tube contained cocaine. The tube was given to the crime lab for additional testing; where it was found to contain .33 milligrams of cocaine.

Sufficiency of the Evidence

Appellant contends in his first point of error that the evidence was insufficient to prove possession. In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 165 (Tex.Crim.App.1991). The entire body of evidence is reviewed to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime, and not just a plausible explanation of the crime. If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Id.; Glass v. State, 761 S.W.2d 806, 807 (Tex.App.—Houston [1st Dist.] 1988, no pet.).

In order to establish the unlawful possession of a controlled substance, the State is required to prove: (1) the accused exercised care, custody and control over the contraband, and (2) the accused knew the matter he possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband. Jackson v. State, 807 S.W.2d 387, 389 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd).

The tube containing cocaine was found by Detective Moser in appellant’s right, front, pants pocket. See Mayes v. State, 831 S.W.2d 5, 7 (Tex.App.—Houston [1st Dist.] 1992, no pet.) (defendant possessed cocaine inside a crack pipe in his front pants pocket); Thomas v. State, 807 S.W.2d 786, 788-89 (Tex.App.—Houston [1st Dist.] 1991), pet. dism’d, 840 S.W.2d 958 (Tex.Crim.App.1992) (defendant possessed cocaine on his person).

Secondly, both the detectives and the chemist observed a white powdery residue inside the tube. See Sims v. State, 833 S.W.2d 281, 284; (Tex.App.—Houston [14th Dist.] 1992, pet. refd) (chemist observed residue in the cocaine pipe with the naked eye); Mayes, 831 S.W.2d at 7 (both officer and chemist observed cocaine residue); Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.—Houston [1st Dist.] 1991, no pet.) (officer observed residue inside crack pipe); Thomas, 807 S.W.2d at 787-88 (officer and chemist observed cocaine residue visible to the naked eye).

Finally, the police department’s chemist measured the cocaine at .33 milligrams. Similar amounts have been found sufficient to support a conviction. See Mayes, 831 S.W.2d at 6 (0.2 milligrams); Thomas, 807 S.W.2d at 788 (0.8 milligrams); Jarrett, 818 S.W.2d at 848 (2 milligrams).

The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). The jury, as the judge of the facts and credibility of the witnesses, could choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). The jury found the appellant guilty of possession of a controlled substance; therefore, they must have believed the testimony of the two detectives and the police department’s chemist.

[629]*629After reviewing the evidence in the light most favorable to the prosecution, there was sufficient evidence for the jury to find that the appellant knowingly possessed a controlled substance.

We overrule appellant’s first point of error.

Statement of the Law During Voir Dire

Appellant contends that the prosecutor misstated the law regarding the burden of proof during voir dire. Specifically, appellant claims the prosecutor made an improper comment about appellant’s failure to call witnesses during the trial.

Appellant concedes that his attorneys did not object to the statement at trial, but states “as a matter of policy” the case should be reversed. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Tex.R.App.P. 52(a) (Vernon Pamph.1993). When a party fails to effectively communicate to the trial court his desire, then reviewing courts should not hesitate to hold that appellant’s complaints have been lost. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). Having failed to object to the prosecutor’s statement during voir dire, appellant has preserved nothing for review.

We overrule appellant’s second point of error.

Ineffective Assistance of Counsel

The standard of review for effectiveness of counsel is gauged by the totality of the representation of the accused. Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980). The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. Rather, the right to effective assistance of counsel means counsel likely to render reasonably effective assistance. Ex parte Cruz, 739 S.W.2d 53, 57-58 (Tex.Crim.App.1987). In order to obtain a reversal due to ineffective assistance, appellant must show that: (1) counsel’s performance was so deficient that counsel was not functioning as the counsel guaranteed by the sixth amendment; and (2) there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different.

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Bluebook (online)
870 S.W.2d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-state-texapp-1994.