Palmer v. State

857 S.W.2d 898, 1993 Tex. App. LEXIS 1586, 1993 WL 184591
CourtCourt of Appeals of Texas
DecidedJune 3, 1993
Docket01-92-00634-CR
StatusPublished
Cited by14 cases

This text of 857 S.W.2d 898 (Palmer 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
Palmer v. State, 857 S.W.2d 898, 1993 Tex. App. LEXIS 1586, 1993 WL 184591 (Tex. Ct. App. 1993).

Opinions

OPINION

DUNN, Justice.

The trial court found appellant, David Barrett Palmer, guilty of possession of a controlled substance, namely cocaine weighing less than 28 grams. The court assessed punishment at eight-years probation and a $1,000 fine. We affirm.

In his sole point of error, appellant contends there was insufficient evidence to prove his knowing possession of the controlled substance beyond a reasonable doubt.

In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the judgment. Flournoy v. State, 668 S.W.2d 380, 388 (Tex.Crim.App.1984). The critical inquiry is whether, after viewing the entire body of evidence in the light most favorable to the judgment, 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); see also 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 standard of review is the same for both direct and circumstantial evidence. Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App.1985); Ramirez v. State, 822 S.W.2d 240, 244 (Tex.App. — Houston [1st Dist.] 1991, pet. ref’d).

There is no bright line amount of a controlled substance that establishes knowing possession. Campbell v. State, 822 S.W.2d 776, 777 (Tex.App. — Houston [14th Dist.] 1992, pet. ref'd). If the amount of a controlled substance seized from a defendant can be seen and measured, it is sufficient to establish that the defendant knew it was a controlled substance. Thomas v. State, 807 S.W.2d 786, 789 (Tex.App. — Houston [1st Dist.] 1991, pet. dism’d); see Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983). The State [900]*900must affirmatively link the defendant to the contraband in such a manner that a reasonable inference arises that he knew of its existence and whereabouts. See Ex parte Stowe, 744 S.W.2d 615, 617 (Tex.App. — Houston [1st Dist.] 1987, no pet.). The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991). The State is not required to exclude every other reasonable hypothesis other than the guilt of the defendant. Id. at 159. The evidence, viewed in the light most favorable to the judgment, follows.

At about 3:45 on the morning of November 27, 1991, Officer Brett Baud was on patrol in the Oak Addition of Baytown. He noticed appellant sitting alone in the passenger’s side of a parked vehicle. The officer testified that there was light from the street light at the corner of Booker T. and M.L.K., and that several porch lights were on. Officer Baud approached the vehicle to inquire about the welfare of appellant. He asked appellant to step out of the car, which appellant did. The officer asked appellant several questions, and learned that appellant lived 20-25 miles away. Although the officer detected no alcohol odor, he concluded appellant was intoxicated because he noticed appellant’s speech was slurred, his eyes were bloodshot, and he was sweating.

As appellant exited the car, the officer saw what he knew to be a glass crack pipe on the floorboard of the car, between appellant’s feet. The crack pipe appeared to have black soot inside it. The officer confiscated the pipe and arrested appellant for possession of narcotics paraphernalia. After arresting appellant for possession of narcotics paraphernalia, the officer conducted a field test on the crack pipe. The pipe tested positive for cocaine. A subsequent chemical analysis revealed the pipe contained .28 milligrams of cocaine.

To prevail, the State must prove that appellant exercised care, control, and management over the substance, and that he knew what he possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); Payne v. State, 480 S.W.2d 732, 734 (Tex.Crim.App.1972). Appellant argues that the evidence is insufficient to prove the “knowing” element1 of the crime of possession beyond a reasonable doubt. He argues that, in the absence of direct evidence, the State failed to prove sufficient “affirmative links” between the cocaine and appellant.

Affirmative links may be proved by circumstantial evidence; however, proof amounting to a strong suspicion or even a probability will not suffice. Dubry v. State, 582 S.W.2d 841, 844 (Tex.Crim.App. [Panel Op.] 1979). It is also not enough for the State to show only that a defendant was the only one present in the vicinity of a controlled substance. Humason v. State, 728 S.W.2d 363, 367 (Tex.Crim.App.1987). Affirmative links may be established by facts and circumstances that indicate the accused’s knowledge of and control over the contraband, including the fact that the contraband was in open or plain view, and that it was in close proximity to the accused. Brazier v. State, 748 S.W.2d 505, 508 (Tex.App. — Houston [1st Dist.] 1992, pet. ref'd). Additional factors are: whether the defendant was at the place searched at the time of the search; whether other persons were present at the time of the search; and whether the amount of contraband found was large enough to indicate the defendant knew of its existence. Classe v. State, 840 S.W.2d 10, 12 (Tex.App. — Houston [1st Dist.] 1992, pet. ref’d).

Appellant relies on Humason to support his argument. In Humason, the police found a very small amount of contra[901]*901band in a car occupied solely by the defendant. 728 S.W.2d at 364. The judgment of the trial court was reversed partly because the State did not provide proof excluding the reasonable hypothesis that Humason was unaware of the presence of the cocaine. Id. at 366-67. At the time Huma-son was decided by the Court of Criminal Appeals, in cases involving proof by circumstantial evidence, the State also had to exclude every other reasonable hypothesis except that of the guilt of the defendant. Id. After the Court of Criminal Appeals’ decision in Geesa, this is no longer the case. Geesa, 820 S.W.2d at 159. We do not address whether the Humason

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Palmer v. State
857 S.W.2d 898 (Court of Appeals of Texas, 1993)

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857 S.W.2d 898, 1993 Tex. App. LEXIS 1586, 1993 WL 184591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-state-texapp-1993.