Rankin v. State

953 S.W.2d 740, 1997 Tex. Crim. App. LEXIS 84, 1996 WL 6757

• Court: Court of Criminal Appeals of Texas
• Decided: October 22, 1997
• Docket: 1019-94
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted by jury of possession of a controlled substance, namely cocaine, weighing less than 28 grams. Appellant pled true to two enhancement counts, and the jury assessed punishment at twenty-five years’ confinement. The Court of Appeals reversed the conviction in an opinion on motion for rehearing. Rankin v. State, 881 S.W.2d 14 (Tex.App.-Houston [1st] 1994). We granted the State’s petition for discretionary review in order to address whether the Court of Appeals erred in holding that appellant admitted to committing an extraneous offense, and whether the Court of Appeals erred in holding that the trial prosecutor could not argue that the jury could find the appellant guilty based upon the judicial admission. We reverse the judgment of the Court of Appeals.

The State presented evidence at trial that a rock of crack cocaine was found underneath the seat of a patrol car where the appellant had been sitting. The appellant testified that he had been in possession of a rock of crack cocaine on the same day that he was arrested and rode in the patrol car, but that the rock of crack cocaine found in the patrol car was not his. Appellant’s wife also testified that appellant had been in possession of a rock of crack cocaine on the day in question, but he had thrown it down the sink in their home.

During closing arguments the State argued that the jury could convict appellant for possessing the crack cocaine found in the patrol car or for possessing the crack cocaine which he said he had thrown down the sink. The Court of Appeals held that when the appellant took the stand and admitted possessing cocaine earlier in the morning he was admitting that he committed an extraneous offense. Rankin, 881 S.W.2d at 17. The Court of Appeals went on to say that since appellant could not be convicted of committing an extraneous offense it was improper for the State to argue that appellant could be convicted solely on the basis of his admission that he had possessed crack cocaine earlier that morning.

An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. McDonald v. State, 692 S.W.2d 169, 173 (Tex.App.—Houston [1st] 1985, pet. ref'd) (emphasis added); Gomez v. State, 626 S.W.2d 113, 114 (Tex.App.—Corpus Christi 1981, pet. ref'd); Shugart v. State, 796 S.W.2d 288, 294 (Tex.App.—Beaumont 1990, pet ref'd). Appellant’s confession that he possessed a rock of crack cocaine earlier that morning is an act that is clearly “shown in the charging papers.” Therefore, the Court of Appeals erred in holding that appellant admitted to committing an extraneous offense. See Hernandez v. State, 698 S.W.2d 679 (Tex.Cr.App.1985).

The Court of Appeals also erred in holding that the trial prosecutor could not argue that the jury could find the appellant guilty based upon the judicial admission of the appellant. Appellant’s admission met every element of the offense set out in the indictment and the charge. This Court has held that sufficiency of the evidence is measured by the charge that was given to the jury. Boozer v. State, 717 S.W.2d 608, 610 (Tex.Cr.App.1984); Benson v. State, 661 S.W.2d 708, 714-15 (Tex.Cr.App.1982). Proof of any element may come from either party; it is not required that the proof come solely from the State. Therefore, it was not error for the jury to convict appellant based on his judicial confession or improper for the prosecutor to argue that they could so convict.

Accordingly, we reverse the judgment of the Court of Appeals and remand this cause to that court to consider appellant’s remaining points of error.

MALONEY, J., concurs in the result. CLINTON and OVERSTREET, JJ., dissent.