King v. State

895 S.W.2d 701, 1995 Tex. Crim. App. LEXIS 35, 1995 WL 131958
CourtCourt of Criminal Appeals of Texas
DecidedMarch 29, 1995
Docket900-93
StatusPublished
Cited by562 cases

This text of 895 S.W.2d 701 (King v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. State, 895 S.W.2d 701, 1995 Tex. Crim. App. LEXIS 35, 1995 WL 131958 (Tex. 1995).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

I.

PROCEDURAL HISTORY

Appellant was charged by indictment with intentionally and knowingly possessing co[702]*702caine weighing less than 28 grams by aggregate weight, including any adulterants and dilutants, on or about July 29,1991, in Harris County. On December 17, 1991, appellant was convicted by a jury in the 178th District Court of Hands County, of possession as alleged in the indictment, and thereafter punishment was assessed at thirty-five years confinement in the Texas Department of Criminal Justice-Institutional Division. On appeal, the Fourteenth Court of Appeals reversed judgment of conviction and ordered the trial court to enter a judgment of acquittal. King v. State, 843 S.W.2d 155 (Tex.App.—Houston [14th Dist.] 1992). This Court vacated the judgment of the court of appeals, and remanded the cause for further consideration of other evidence noted in the State’s brief which demonstrated knowledge of the character of the contraband when the substance itself was unable to be weighed. King v. State, 848 S.W.2d 142 (Tex.Cr.App.1993). Upon further examination of such evidence, the court of appeals affirmed the conviction and sentence. King v. State, 857 S.W.2d 718 (Tex.App.—Houston [14th Dist.] 1993).

We granted appellant’s petition for discretionary review. His sole ground for review states, “There was insufficient evidence that appellant knowingly possessed a controlled substance.”

II.

SUMMARY OF PERTINENT FACTS

At approximately 12:05 p.m. on July 29, 1991, after receiving a call regarding a narcotics complaint, the Houston Police Department dispatched an officer to a local apartment complex. Upon arrival the officer observed appellant approaching him from a distance. Appellant appeared to be staggering, and as they moved closer to each other, the officer began to detect a strong odor of alcohol. At trial, the officer testified that not only was appellant staggering, he also swayed back and forth, his speech was slurred, and his eyes were glazed over. After determining that appellant was “obviously” intoxicated to the point where he could be a danger to himself or others, appellant was handcuffed and placed under arrest for public intoxication. A search of appellant revealed a “crack pipe,” an instrument used to smoke crack cocaine, in appellant’s right front pants pocket. The officer then administered a field test for cocaine by scraping slivers from the “crack pipe,” and placing the slivers into a solution which would result in a negative or positive reaction for cocaine. The test concluded positive and appellant was later charged with knowingly and intentionally possessing cocaine.

III.

COURT OF APPEALS HOLDING

After remand from this Court, the court of appeals held that the evidence was sufficient to prove that appellant knew that the substance in his possession was a controlled substance because the cocaine was visible in the “crack pipe” recovered from appellant’s right front pants pocket, and the “crack pipe” was still damp with saliva when recovered. King v. State, 857 S.W.2d at 720.

IV.

APPELLANT’S CLAIM

Appellant claims that because the State relied upon an unweighable amount of cocaine to prove that he knowingly possessed the controlled substance, and because the State failed to prove the required mens rea element of the offense beyond a reasonable doubt, the evidence was insufficient to conclude that he knowingly possessed the controlled substance. He therefore avers that the court of appeals erred in holding that the evidence presented by the State was sufficient to prove appellant’s knowing possession of cocaine.

V.

STATE’S CONTENTION

The State contends that there was indeed sufficient evidence to support the conviction because there is no minimum weight required to sustain a conviction for possession of a controlled substance, and even if the quantity is too minute to be measured or seen, other evidence can prove that the de[703]*703fendant knew the substance in his possession was a controlled substance.

VI.

ANALYSIS

As with all elements of a criminal offense, the State must prove the mens rea element beyond a reasonable doubt. Humason v. State, 728 S.W.2d 363, 366 (Tex.Cr.App.1987). In reviewing appellant’s claim of insufficient evidence, we must determine not only whether appellant had possession of the controlled substance, but also whether appellant had knowledge of the possession. Mendoza v. State, 636 S.W.2d 198, 200 (Tex.Cr.App.1982); Shults v. State, 575 S.W.2d 29, 30 (Tex.Cr.App.1979). The standard of review on appeal is the same for both direct and circumstantial evidence. McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Cr.App.1985). The critical inquiry is whether, after viewing the entire body of evidence in the light most favorable to the prosecution, 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, 573 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Cr.App.1984). In order for the State to meet its burden, and establish that the evidence was sufficient to support a verdict of guilt, it must meet two evidentiary requirements: first, the State must prove that appellant exercised actual care, control and management over the contraband; and second, that appellant had knowledge that the substance in his possession was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Cr.App.1988); Herrera v. State, 561 S.W.2d 175, 179 (Tex.Cr.App.1978).

After the arrest, the “crack pipe” found on appellant’s person was submitted to the Houston Police Department’s narcotics laboratory for further tests. At trial, the police chemist, who administered the tests, testified that four types of chemical analyses were performed on the residue found in the “crack pipe,” and that these tests revealed that there was a positive presence of cocaine within the residue. The chemist testified, “There was a visible residue in the pipe to the naked eye.” The chemist also testified, “[T]he amount of cocaine present ... was small enough where we could not determine the amount.” Because the amount of cocaine was too small to be measured, this Court’s language in Shults v. State, supra, is controlling. Shults holds that “when the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance.” Shults v. State, 575 S.W.2d at 30. Therefore, the State must prove, through other evidence, that appellant had knowledge that the substance in his possession was cocaine.

The State contends that because cocaine was visible in the “crack pipe,” and because the “crack pipe” was damp with “saliva” when recovered, such was sufficient proof that appellant knowingly possessed cocaine.

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Bluebook (online)
895 S.W.2d 701, 1995 Tex. Crim. App. LEXIS 35, 1995 WL 131958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-state-texcrimapp-1995.