Perry v. State

864 S.W.2d 794, 1993 Tex. App. LEXIS 2951, 1993 WL 442563
Court of Appeals of Texas·Decided November 3, 1993·No. No. 2-92-419-CR·Published·Cited by 2 cases

Opinion

OPINION

HICKS, Justice.

Appellant was convicted by a jury for the offense of possession of cocaine in an amount less than twenty-eight grams. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 1992). He pleaded “true” to two enhancement counts, and the trial judge assessed punishment at fifty years confinement. In two points of error, appellant contends that the court improperly sustained a challenge for cause made by the State, and that the evidence is insufficient to support his conviction. We affirm.

In his first point of error, appellant argues that the court erred by sustaining a challenge for cause the State made against prospective juror Margaret McCoy. During the State’s voir dire, McCoy stated that she had “a run-in with officers,” but that she preferred not to talk about it publicly. When McCoy was later questioned outside the presence of the jury panel, the following occurred:

[PROSECUTOR]: Okay. Ma’am, we noticed on your form that you had been arrested.
PROSPECTIVE JUROR: I was arrested in May of this year with a woman officer. She stuck a gun in my face. And I was not guilty but I was — I had to plead guilty. The person that I was with that was stealing a car got off free. So I do not believe in attorneys any more or the judicial system.
[795] [PROSECUTOR]: Okay.
PROSPECTIVE JUROR: Because it did not- work for me.
[PROSECUTOR]: Okay. Obviously, I can see that you have ill will towards the system.
PROSPECTIVE JUROR: Exactly.
[PROSECUTOR]: Would that create a — a hardship for you serving on this jury?
PROSPECTIVE JUROR: A little bit.
[PROSECUTOR]: Would that sway you to one side or the other while you’re listening—
PROSPECTIVE JUROR: Not really, no. I’ve been on a jury panel before. And I’m very strong willed and I have my own opinion.
[PROSECUTOR]: Would you be able to judge the credibility of — of police officers or would that be tainted by what’s happened?
PROSPECTIVE JUROR: Well, it was brought out that there are some good officers and some bad.
[PROSECUTOR]: Was that a Fort Worth officer that arrested you?
PROSPECTIVE JUROR: Yes.
[PROSECUTOR]: It was a woman?
PROSPECTIVE JUROR: Yes.
[PROSECUTOR]: Well, would you just be able to have an open mind as you sit here?
PROSPECTIVE JUROR: I would really try to, but this is, like, back in May. I mean, this is real fresh. I mean, I was in court across the hall.
[PROSECUTOR]: Again, obviously, if you were in the State’s position, you’d probably be concerned — we’re concerned when we hear someone has had such a bad experience with a police officer. I know you’re saying that you would try, but I really need to know if you—
PROSPECTIVE JUROR: That’s all I can do is just try, you know. But it just depends on what the officers say. You know, it depends on the evidence, what they say.

Further, McCoy stated that after her arrest, her attorney pressured her into pleading guilty to the offense of criminal trespass even though she was not guilty. When asked by appellant’s counsel if this experience made her “harbor any ill will to other lawyers,” McCoy said, “I just don’t believe in the profession of attorneys. I just think they’re kind of prostitutes is what they are.” McCoy also stated that she felt this way about most attorneys, and that therefore she would dislike the prosecutors and defense attorneys equally. In evaluating appellant’s guilt or innocence, McCoy said she would not hold her own personal experience against either side.

The code of criminal procedure provides that the State may challenge for cause a venireperson who has a bias or prejudice in favor of the defendant, or some phase of the law upon which the State is entitled to rely for conviction or punishment. Tex.Code Crim.Proc.Ann. art. 35.16(a)(9), (b)(3) (Vernon 1989 & Supp.1993). When making its objection, the State cited the wrong provision of the code of criminal procedure and stated that McCoy was “unable to follow the law,” and had “[b]ias and prejudice against any of the law applicable to the ease.” Although technically this may not have been the best objection to make, the reasons for the objections were sufficiently clear.

The trial court’s decision on whether to sustain a challenge for cause is accorded great deference. Mooney v. State, 817 S.W.2d 693, 701 (Tex.Crim.App.1991). When the evidence is conflicting, a trial court has discretion to find, or to refuse to find, facts such as would justify a challenge to a venireman for cause. Hammond v. State, 799 S.W.2d 741, 744-45 (Tex.Crim.App.1990), cert. denied, — U.S.-, 111 S.Ct. 2912, 115 L.Ed.2d 1076 (1991); see Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.), cert. denied, — U.S. -, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). Given McCoy’s statements about police officers and attorneys, which seem to indicate a slant in favor of appellant, .we cannot say that the trial court abused its discretion by sustaining the State’s challenge for cause. Point one is overruled.

[796] In point two, appellant challenges the sufficiency of the evidence to support his conviction. Specifically, he argues that there is insufficient evidence that he possessed the cocaine. The penal code defines “possession” as actual care, custody, control, or management. Tex.Penal Code Ann. § 1.07(a)(28) (Vernon 1974). In reviewing the sufficiency of the evidence, this court must determine whether, considering the evidence in the light most favorable to the verdict, 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); Little v. State, 758 S.W.2d 551, 562 (Tex.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988).

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Perry v. State, 864 S.W.2d 794, 1993 Tex. App. LEXIS 2951, 1993 WL 442563 (Tex. Ct. App. 1993).

864 S.W.2d 794 (Perry v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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