OPINION
EVANS, Chief Justice.
A jury found appellant guilty of possession of cocaine, and upon finding enhancement allegations of two prior felony convictions to be true, assessed appellant’s punishment at life imprisonment as required by Tex.Penal Code sec. 12.42(d).
In five grounds of error, the appellant claims that the trial court’s denial of his motion to suppress certain evidence was reversible error; that the evidence is insuf[917]*917ficient to support the jury’s verdict; that the jury’s verdict was coerced; and that his life sentence violates the Eighth Amendment prohibition of cruel and unusual punishment.
On November 24, 1982, around one o’clock in the morning, a Houston police patrol car en route to a call passed a 24-hour car wash located in a high crime area. The two officers noted a car parked in the far stall of the car wash and agreed to investigate if the car was still there on their return trip. Less than a half hour later, they again passed the car wash and as they drove up to investigate, saw people in the parked car. Officer Williams, the passenger in the patrol car, testified that his partner turned off their lights as they drove up and parked out of sight. He then approached the car from the front with his gun drawn and saw three people, two in front and one in the back seat on the passenger side. When he identified himself, the driver put the car in reverse and attempted to flee? However, Officer Mercer, who had circled around to the rear of the car, cut off their escape.
Both officers testified that the lights were not working in the stall where the car had been parked. Officer Mercer testified that as he approached the ear, he saw appellant in the back seat with a syringe in his arm. The officer said that when the appellant saw the officer, he removed the syringe, “spurting blood” from his arm. The officers also testified that they found at least one syringe, possibly more, and one bottle cap with a liquid substance in the front seat of the car, and one syringe and another cap with liquid on the floorboard of the back seat. At trial, the bottle cap from the back seat was introduced as State’s Exhibit No. 2, and testimony was given indicating that a field test had been made of the contents of that cap. However, those results are not in the trial record. State’s Exhibit No. 3, another cap allegedly found in the vicinity of appellant, was determined by a police chemist to contain .0095 grams of cocaine. Since the police only claimed to have found two caps with liquid in them, and the contents of the one in the backseat were allegedly used in a field test, the only proof of a controlled substance in the record concerns the contents of a bottle cap found in the front seat of the car.
The appellant contends that the trial court erred in denying his motion to suppress the evidence obtained as a result of the search of the vehicle in the ear wash stall. He points to the testimony of Officer Williams, indicating that he became suspicious of the automobile because “it was just sitting there without any occupants that he could see and was not being washed.” The appellant contends that these facts did not justify the officers’ investigation which resulted in the arrest, search, and seizure of the caps and syringes in the car.
We overrule this contention. The facts clearly indicate that the officers took swift action predicated upon on-the-spot observations, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Under the guidance of Terry, we have examined the behavior that first aroused the officers’ suspicions, the neighborhood or context in which the behavior occurred, and the officer’s experience, to determine whether the “specific and articulable” facts on which the officers relied in fact justified the intrusion made. 392 U.S. at 22-23, 88 S.Ct. at 1880-1881. The initial specific and articulable fact relied on by the officers was that a car was parked in a poorly-lit stall of a car wash, and was not being washed. The officers testified that the car wash was located in a high crime area where drug use and car theft were prevalent, and that they were experienced in patrolling this area for such crimes. In light of the legitimate governmental interest in detecting and preventing such crimes, and because the presence of the car at such location and time of night was not equally consistent with legal behavior, we conclude that the officers had specific and articulable suspicions sufficient to justify their investigation. Cf. Schwartz v. State, 635 S.W.2d 545 (Tex.Cr.App.1982).
Having determined that the officers’ actions were justified at their incep[918]*918tion, we next consider whether their subsequent actions were “reasonably related in scope to the circumstances which justified interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1878. As the officers approached the car to investigate, it became apparent that there were people in the car. When an officer is justifiably investigating the situation that aroused his articulable suspicions, he is entitled to proceed in a manner that minimizes his personal risk. Under the circumstances reflected by the record, we conclude that the manner in which the officer accosted the occupants of the car was justified, and that when the driver of the car attempted to flee, and the officer observed evidence of drug use, there was probable cause for the arrest of the occupants. The search of the ear incident to the arrest was therefore legal, and the evidence seized as a result of that search and in plain view was properly admitted at trial. We accordingly hold that there was sufficient evidence of specific and articulable circumstances to justify the initial investigation and stop, and the appellant’s first ground of error is overruled.
The appellant also challenges the sufficiency of the evidence to support his conviction on the grounds that the State failed to establish his possession of the contraband found in the car, and that the amount of cocaine seized was too small to constitute an offense.
A police chemist testified that the “cooker” submitted to him for testing contained 9.5 milligrams (.0095 grams) of cocaine. It has been held that 3.2 milligrams of contraband is sufficient to uphold a conviction under the Controlled Substances Act, Tex.Rev.Civ.Stat. art. 4476-15 sec. 4.04(b). Kent v. State, 562 S.W.2d 855 (Tex.Cr.App.1978). We therefore overrule appellant’s fifth ground of error.
We also hold that the evidence is sufficient to prove that appellant was in possession of the contraband seized. Possession of a controlled substance is defined as the “actual care, custody, control or management”, and possession is a crime if the accused knew it was a controlled substance. Article 4476-15 sec. 4.04(a). The State was not required to prove that the appellant was actually holding the cap of cocaine, but was required to offer evidence which affirmatively linked him to the contraband, proving beyond a reasonable doubt his knowledge and possession. Rodriguez v. State, 635 S.W.2d 552, 553 (Tex.Cr.App.1982). There is testimony that a bottle cap, with a substance the officers believed to be controlled, was found in the backseat area where defendant was the sole occupant. The bottle cap in the front seat was shown to contain 9.5 milligrams of cocaine.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
EVANS, Chief Justice.
A jury found appellant guilty of possession of cocaine, and upon finding enhancement allegations of two prior felony convictions to be true, assessed appellant’s punishment at life imprisonment as required by Tex.Penal Code sec. 12.42(d).
In five grounds of error, the appellant claims that the trial court’s denial of his motion to suppress certain evidence was reversible error; that the evidence is insuf[917]*917ficient to support the jury’s verdict; that the jury’s verdict was coerced; and that his life sentence violates the Eighth Amendment prohibition of cruel and unusual punishment.
On November 24, 1982, around one o’clock in the morning, a Houston police patrol car en route to a call passed a 24-hour car wash located in a high crime area. The two officers noted a car parked in the far stall of the car wash and agreed to investigate if the car was still there on their return trip. Less than a half hour later, they again passed the car wash and as they drove up to investigate, saw people in the parked car. Officer Williams, the passenger in the patrol car, testified that his partner turned off their lights as they drove up and parked out of sight. He then approached the car from the front with his gun drawn and saw three people, two in front and one in the back seat on the passenger side. When he identified himself, the driver put the car in reverse and attempted to flee? However, Officer Mercer, who had circled around to the rear of the car, cut off their escape.
Both officers testified that the lights were not working in the stall where the car had been parked. Officer Mercer testified that as he approached the ear, he saw appellant in the back seat with a syringe in his arm. The officer said that when the appellant saw the officer, he removed the syringe, “spurting blood” from his arm. The officers also testified that they found at least one syringe, possibly more, and one bottle cap with a liquid substance in the front seat of the car, and one syringe and another cap with liquid on the floorboard of the back seat. At trial, the bottle cap from the back seat was introduced as State’s Exhibit No. 2, and testimony was given indicating that a field test had been made of the contents of that cap. However, those results are not in the trial record. State’s Exhibit No. 3, another cap allegedly found in the vicinity of appellant, was determined by a police chemist to contain .0095 grams of cocaine. Since the police only claimed to have found two caps with liquid in them, and the contents of the one in the backseat were allegedly used in a field test, the only proof of a controlled substance in the record concerns the contents of a bottle cap found in the front seat of the car.
The appellant contends that the trial court erred in denying his motion to suppress the evidence obtained as a result of the search of the vehicle in the ear wash stall. He points to the testimony of Officer Williams, indicating that he became suspicious of the automobile because “it was just sitting there without any occupants that he could see and was not being washed.” The appellant contends that these facts did not justify the officers’ investigation which resulted in the arrest, search, and seizure of the caps and syringes in the car.
We overrule this contention. The facts clearly indicate that the officers took swift action predicated upon on-the-spot observations, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Under the guidance of Terry, we have examined the behavior that first aroused the officers’ suspicions, the neighborhood or context in which the behavior occurred, and the officer’s experience, to determine whether the “specific and articulable” facts on which the officers relied in fact justified the intrusion made. 392 U.S. at 22-23, 88 S.Ct. at 1880-1881. The initial specific and articulable fact relied on by the officers was that a car was parked in a poorly-lit stall of a car wash, and was not being washed. The officers testified that the car wash was located in a high crime area where drug use and car theft were prevalent, and that they were experienced in patrolling this area for such crimes. In light of the legitimate governmental interest in detecting and preventing such crimes, and because the presence of the car at such location and time of night was not equally consistent with legal behavior, we conclude that the officers had specific and articulable suspicions sufficient to justify their investigation. Cf. Schwartz v. State, 635 S.W.2d 545 (Tex.Cr.App.1982).
Having determined that the officers’ actions were justified at their incep[918]*918tion, we next consider whether their subsequent actions were “reasonably related in scope to the circumstances which justified interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1878. As the officers approached the car to investigate, it became apparent that there were people in the car. When an officer is justifiably investigating the situation that aroused his articulable suspicions, he is entitled to proceed in a manner that minimizes his personal risk. Under the circumstances reflected by the record, we conclude that the manner in which the officer accosted the occupants of the car was justified, and that when the driver of the car attempted to flee, and the officer observed evidence of drug use, there was probable cause for the arrest of the occupants. The search of the ear incident to the arrest was therefore legal, and the evidence seized as a result of that search and in plain view was properly admitted at trial. We accordingly hold that there was sufficient evidence of specific and articulable circumstances to justify the initial investigation and stop, and the appellant’s first ground of error is overruled.
The appellant also challenges the sufficiency of the evidence to support his conviction on the grounds that the State failed to establish his possession of the contraband found in the car, and that the amount of cocaine seized was too small to constitute an offense.
A police chemist testified that the “cooker” submitted to him for testing contained 9.5 milligrams (.0095 grams) of cocaine. It has been held that 3.2 milligrams of contraband is sufficient to uphold a conviction under the Controlled Substances Act, Tex.Rev.Civ.Stat. art. 4476-15 sec. 4.04(b). Kent v. State, 562 S.W.2d 855 (Tex.Cr.App.1978). We therefore overrule appellant’s fifth ground of error.
We also hold that the evidence is sufficient to prove that appellant was in possession of the contraband seized. Possession of a controlled substance is defined as the “actual care, custody, control or management”, and possession is a crime if the accused knew it was a controlled substance. Article 4476-15 sec. 4.04(a). The State was not required to prove that the appellant was actually holding the cap of cocaine, but was required to offer evidence which affirmatively linked him to the contraband, proving beyond a reasonable doubt his knowledge and possession. Rodriguez v. State, 635 S.W.2d 552, 553 (Tex.Cr.App.1982). There is testimony that a bottle cap, with a substance the officers believed to be controlled, was found in the backseat area where defendant was the sole occupant. The bottle cap in the front seat was shown to contain 9.5 milligrams of cocaine. The officer testified that at the time of appellant’s arrest, he had a syringe in his arm. The only reasonable inference to be drawn from this evidence is that the appellant was using cocaine. This use sufficiently links the appellant to the cocaine seized to prove possession. We overrule appellant’s third ground of error.
We next consider the appellant’s contention that the trial court committed reversible error during the jury’s deliberation, resulting in a coerced verdict.
The record reflects that the trial lasted less than two days. The jury began its deliberations about 11:30 a.m. on the second day, and during the afternoon, the court brought in the jury and asked the foreman how they were divided. The foreman replied that they were divided 11 to 1 at that time. Later that afternoon, the jury apparently sent a note to the court, which does not appear in the record, and the court again brought in the jury. The court advised the jury that it had received the note and that the court did not feel that the jury had then deliberated a sufficient time for the court to decide that a mistrial was in order. The court was then recessed, and the jury’s deliberations did not resume until some six days later because of a death in the family of one of the jurors. At that time, the jury had deliberated one afternoon. After the six-day recess, the jury continued its deliberations and at about 11:00 a.m., the jury foreman sent a note to the court stating “the jury finds it impossible to reach a decision at this time.” The court responded, over appellant’s ob-[919]*919jeetion, with the following additional instruction:
MEMBERS OF THE JURY:
It would be necessary for the Court to declare a mistrial if the jury found itself unable to arrive at a unanimous verdict after a reasonable length of time. The indictment will still be pending, and it is reasonable to assume the case will be tried again with the same questions to be determined by another jury and with no reason to hope such other jury would find the questions any easier to decide. The length of time the jury would be required to deliberate is within the discretion of the Court, and the Court does not at present feel the jury has deliberated a sufficient length of time to fully eliminate the possibility of its being able to arrive at a verdict.
You are admonished to follow your oath as jurors and to render a true verdict based on the law and the evidence you heard so help you God.
At noon, yet another note from the jury was sent to the court, stating “the jury has not been able to reach a decision as to guilty or not guilty.” Finally, at 1:50 p.m., the jury returned a verdict of guilty.
The appellant does not cite any authorities to support his argument that the trial court committed reversible error in submitting the additional instruction to the jury. As the State correctly points out, this type of additional instruction was approved by the U.S. Supreme Court long ago in Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and has been upheld by the Texas Court of Criminal Appeals in Arrevalo v. State, 489 S.W.2d 569 (Tex.Cr.App.1973), and later by this court in Love v. State, 627 S.W.2d 457 (Tex.App.—Houston [1st Dist.] 1981, no writ). Although the instruction given by the court in the case at bar goes further than those reported, importuning the jury to render “a true verdict based on the law and the evidence you heard so help you God,” we do not perceive from the record that the jury was coerced to render a guilty verdict by this language. We overrule the appellant’s second ground of error.
We also overrule the appellant’s fourth ground of error, in which he claims that his life sentence violates the Eighth Amendment constitutional guarantee against cruel and unusual punishment. The statute under which the appellant was sentenced to life imprisonment, Tex.Penal Code sec. 12.42(d), was enacted to protect the citizens of this State against recidivist offenders. The statute was specifically upheld against similar attack in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and was carefully distinguished from the South Dakota recidivist statute by the majority in Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In a five to four decision, the Supreme Court in that case reversed a South Dakota recidivist conviction because it concluded that the sentence (life imprisonment with no possibility of parole) was disproportionate to the crime and violated the Eighth Amendment.
The Solem decision does not require us to undertake a penological survey of Texas and the other forty-nine states to review the proportionality of this sentence. The Solem majority stated that “the South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel.” 103 S.Ct. at 3015. We therefore construe the majority opinion in Solem v. Helm to permit appellate proportionality review of recidivist convictions in states where the law punishes recidivists with mandatory life imprisonment without possibility of parole. In view of the Supreme Court’s reaffirmation of its pronouncement in Rummel, it is unnecessary for us to attempt a review of recidivist convictions in this and other state jurisdictions.
The majority opinion in Solem v. Helm noted Mr. Helm’s addiction to alcohol (103 S.Ct. 3013, n. 22). The dissent in the instant case, similarly noting that the offense for which the appellant was convicted could possibly be attributed to a physical addiction to cocaine, suggests that the judgment be reviewed in light of that factor.
[920]*920We do not regard that nature of review as being the proper appellate function of this court. It is generally a matter for the legislature to establish appropriate ranges of punishment for offenses committed against the state, and it is principally the duty of the legislature, not this court, to formulate public policy. Similarly, we believe that the determination of the exact sentence to be imposed within the ranges provided by statute is a matter peculiarly within the province of the judge and jury. Thus, we conclude that our function is generally restricted to a review of the judgment to assure that the defendant received a fair and impartial trial, and that no error occurred which would warrant a reversal of the trial court’s judgment.
If this court were to substitute its judgment as to the excessiveness of the sentence, for that of the trial judge and jury, our review of criminal appeals would lead to much uncertainty in the law. This, in turn, would make the law itself seem arbitrary and unpredictable, and thus undermine the accountability that individuals feel for their infractions of the law.
All penal laws attempt to instill in the individual a sense of accountability for his actions, and the recidivist statute goes one step further, requiring accountability for an individual’s decision to continue breaking the law, not just for the infraction itself. See Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219, 221 (1937). The recidivist statute has been reviewed by the Supreme Court and found to be constitutional, and we find no circumstances in this case indicating a need for further determination of its constitutionality. We are satisfied from our review of the record that the sentence was lawfully imposed by the jury, and as stated before, we conclude that our judgment of the appellant’s culpability should not be substituted for that of the jury. We further conclude that the legislature’s enactment of the repeat offenders statute was intended to further a legitimate public policy, and that the statute is as binding on this court as it is on any citizen of the state. Therefore it is our duty to sustain the sentence imposed in accordance with the statute.
The judgment of the trial court is affirmed.
LEVY, J., dissenting.