Rogers v. State

846 S.W.2d 883, 1993 Tex. App. LEXIS 476, 1993 WL 37996
CourtCourt of Appeals of Texas
DecidedJanuary 13, 1993
Docket09-92-167 CR
StatusPublished
Cited by20 cases

This text of 846 S.W.2d 883 (Rogers 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
Rogers v. State, 846 S.W.2d 883, 1993 Tex. App. LEXIS 476, 1993 WL 37996 (Tex. Ct. App. 1993).

Opinions

OPINION

BURGESS, Justice.

A jury convicted Herman Williams Rogers, Jr., of aggravated possession of a controlled substance. Appellant pleaded “true” to the enhancement allegation. The court assessed punishment at thirty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises six points of error.

We address the first two points together, as follows:

Point of error one: The trial court erred in failing to take remedial measures with regard to the words “drug impact” as they appear in the name of his court, up to and including a declaration of a mistrial, where such words are prejudicial and violate appellant’s due process rights to a fair trial before an impartial jury.
Point of error two: The trial court erred in failing to take remedial measures with regard to the words “drug impact” as they appear in the name of his court, up to and including a declaration of mistrial, where such words violate appellant’s constitutional right to a presumption of innocence.

Before voir dire, counsel for appellant moved to dismiss the array “because of the ‘drug impact’ sign that is indicated outside the door which each person on the jury panel could see.” Appellant now argues: “... the word ‘impact’ with the word ‘court’ carries overtones associated with institutionalizing transformation of social conditions.” The gravamen of his argument is that the words “drug impact court” are “an outside influence creating prejudice” because they are seen by the venire-persons as they enter the courtroom. Appellant claims "... it is by now obvious that the name ‘Drug Impact Court’ was chosen with an obvious intent of creating a prejudiced sense of foreboding or mission upon entry into the courtroom.” Appellant analogizes trying appellant in the “drug impact court” to trying appellant in jail clothes, a practice found violative of due process rights to fair trial and presumption of innocence. Randle v. State, 826 S.W.2d 943 (Tex.Crim.App.1992). The words “drug impact court” are facially no more prejudicial than the words “criminal district court”, in that both terms denote the specialized docket of the particular court. These words are not automatically violative of due process; we must review the evidence in the record.

Before voir dire began, appellant moved to dismiss the array, arguing that the “drug impact” sign “automatically tells them that they should convict based on drugs.” He requested no other relief. Appellant presented no evidence with his motion, which was overruled. He then developed the record during voir dire by asking the venirepersons “Does anybody not know what the word ‘impact’ means?” and “On the first row has anybody seen that word today?” A few venirepersons recalled seeing the sign, and defense counsel elicited responses concerning the impact of drug use on society. None of the venirepersons related a bias in connection with the sign. Appellant developed no other evidence of prejudice. We fail to see, from a totality of the circumstances, how the procedures employed in the case at bar involved prejudice [885]*885or even the probability of prejudice that they can be deemed inherently lacking in due process. See Taylor v. State, 420 S.W.2d 601 (Tex.Crim.App.1967), overruled on other grounds, 648 S.W.2d 685 (Tex.Crim.App.1977). While we decline to rule that the sign was not prejudicial as a matter of law, there is simply nothing in the record to suggest any violation of appellant’s right to an impartial jury and to the presumption of innocence as guaranteed by U.S. Const, amends. VI, XIV and Tex. Const, art. I, § 19. Appellant argues the sign was a “hidden persuader”; it was incumbent upon appellant to reveal the unconstitutional persuasion or “directive to convict” thus employed in order to show that he was entitled to the relief requested and denied by the trial court. Points of error one and two are overruled.

Point of error three avers: “Appellant is entitled to reversal of his conviction because the affirmative link necessary to prove appellant’s possession of the athletic bag and its contents, which included the contraband on which his conviction is based, was not proven beyond a reasonable doubt.” Appellant acknowledges that the standard of review of sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Appellant then challenges the evidence of an “affirmative link” between appellant and the cocaine-laden gym bag, citing Foster v. State, 814 S.W.2d 874 (Tex.App.—Beaumont 1991, pet. ref’d) and Whitworth v. State, 808 S.W.2d 566 (Tex.App.—Austin 1991, pet. ref’d). Foster and Whitworth are circumstantial evidence cases decided pursuant to Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987). Humason is nothing more than the application of the “alternate reasonable hypothesis” construct to cases where possession of contraband is proven by circumstantial evidence. The “alternate reasonable hypothesis” construct is inapplicable to cases tried after November 6, 1991. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). Since this case was tried on June 29, 1992, Humason and its progeny are inapplicable. Although appellant’s point of error states the necessary affirmative link was not proven beyond a reasonable doubt, for all cases tried after November 6, 1991, the state need not eliminate every reasonable hypothesis other than guilt to circumstantially prove the mens rea of the offense. The sole standard by which we review the evidence is that stated in Jackson v. Virginia.

Although appellant’s point of error is based upon an obsolete rule of law, we will consider whether any rational trier of fact could have found appellant intentionally or knowingly possessed the contraband beyond a reasonable doubt, specifically whether the state established the mens rea of the offense. Officer Roger Ross testified that when he entered the room, appellant was standing at the foot of the bed. Appellant was stuffing some articles into a gym bag on the bed. Appellant stepped away from the bag and approached the door. The officer walked over to the open bag and appellant sat on the corner of the bed. The officer testified that appellant was packing the bag and said “he wanted to get his things and go.” The bag contained men’s clothing and toilet articles and a letter from the Texas Department of Public Safety addressed to appellant. It also contained 56 rocks of what the testifying chemist identified as cocaine. Viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found appellant guilty beyond a reasonable doubt of intentionally or knowingly possessing a controlled substance. Point of error three is overruled.

Point of error four urges the following:

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Rogers v. State
846 S.W.2d 883 (Court of Appeals of Texas, 1993)

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846 S.W.2d 883, 1993 Tex. App. LEXIS 476, 1993 WL 37996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-state-texapp-1993.