Soto v. State

810 S.W.2d 861, 1991 Tex. App. LEXIS 1447, 1991 WL 99928
CourtCourt of Appeals of Texas
DecidedJune 12, 1991
Docket2-90-006-CR
StatusPublished
Cited by21 cases

This text of 810 S.W.2d 861 (Soto 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
Soto v. State, 810 S.W.2d 861, 1991 Tex. App. LEXIS 1447, 1991 WL 99928 (Tex. Ct. App. 1991).

Opinion

OPINION

HILL, Justice.

Jesse Soto, Jr. appeals his conviction by a jury of the offense of possession of a controlled substance, amphetamine of less than twenty-eight grams. The jury, finding enhancement allegations to be true, assessed his punishment at life imprisonment in the Texas Department of Corrections, now the Texas Department of Criminal Justice, Institutional Division. Soto complains in six points of error that the trial court erred in: (1) holding that the evidence is sufficient to sustain the conviction because the evidence is insufficient to prove possession; (2) receiving evidence resulting from a warrantless arrest without probable cause; (3) receiving evidence resulting from a warrantless and nonconsen-sual search of the vehicle Soto had been driving; (4) failing to grant a mistrial because of improper jury argument suggesting that Soto was a drug dealer; (5) overruling Soto’s objection to prejudicial jury argument asking the jury to assess punishment for a collateral crime; and (6) overruling Soto’s objection to prejudicial jury argument attacking defense counsel.

We affirm because: (1) the evidence is sufficient to support Soto’s conviction for possession of amphetamine since there are affirmative links to connect him to the drug found underneath the driver’s seat of the automobile he was driving; (2) Officer Scott’s stop and arrest of Soto and his search of Soto’s vehicle were valid in view of Soto’s commission of a traffic offense in the officers presence and his subsequent possession of a dangerous drug in the officer’s presence; (3) the search of Soto’s vehicle was valid in view of his lawful arrest; (4) the prosecutor’s argument about drug dealers was a reasonable inference from the evidence, and, if not, was *863 properly cured by the trial court’s instruction; and (5) Soto’s trial objections to other arguments do not comport with the points of error on appeal and therefore do not preserve error.

Soto contends in point of error number one that the evidence is insufficient to establish that he was in possession of amphetamine.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (opinion on reh’g). The Texas Court of Criminal Appeals has also held that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984).

Fort Worth Police Officer David Scott observed Soto driving without a seat belt as Soto exited a motel parking lot. Scott testified that Soto seemed startled upon observing the officer, then pulled onto an expressway service road and accelerated. Officer Scott said he thought Soto was running from him.

Scott followed Soto as he went around the block and parked in a parking lot of a motel adjacent to the one from which he started. As Scott pulled his car behind Soto’s he saw Soto ducking down in the car. Soto got out of his car with his hands in his pockets and began walking toward Scott. Soto removed his hands from his pockets when Scott ordered him to do so. Soto had a small box in his hand containing Pamelor, a drug that contained a warning that “Federal law prohibits dispensing this drug without a prescription.” When Soto told Scott he had no prescription for the drug, Scott arrested him for possession of a controlled substance. Pamelor is not a controlled substance under either state or federal law.

Scott and another officer searched Soto’s car. In the car they found two handguns, a pair of Japanese swords, glassware and chemicals used in the manufacture of controlled substances, and a Crown Royal bag containing plastic baggies of a white powdery substance, later determined to be amphetamine. The amphetamine was found underneath the front seat, on the driver’s side, next to a loaded .38 caliber revolver. Both the interior of the car and Soto’s clothing smelled of chemicals used to manufacture controlled substances.

We hold that the evidence is sufficient to sustain Soto’s conviction for possession of the amphetamine. Relying on Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987), Soto urges that there are no affirmative links to show that he possessed the amphetamine found by the officers. We hold that the smell of ether, a chemical used in the manufacture of controlled substances, that permeated the vehicle and Soto’s clothing, along with Soto’s ducking down in the vicinity of the drug when confronted by a police officer, were sufficient affirmative links to sustain Soto’s conviction. We overrule point of error number one.

Soto argues in points of error numbers two and three that the trial court erred in admitting evidence discovered in the search of the automobile he was driving when he was arrested without a warrant because there was no probable cause for his arrest.

Scott’s initial stop of Soto was justified by the traffic offense of not wearing a seat belt committed by Soto in Scott’s presence. See Duncantell v. State, 563 S.W.2d 252, 256 (Tex.Crim.App.1978).

After stopping Soto, Officer Scott discovered that Soto was in possession of Pamelor, a drug that is not a controlled substance but does meet the definition of a dangerous drug as defined in section 483.-001 of the Texas Health and Safety Code. Section 483.041(a) provides that the possession of such a drug is an offense unless obtained from a pharmacist acting in the *864 manner described by section 483.042(a)(1) or a practitioner acting in the manner described by section 483.042(a)(2).

Section 483.042(a)(1) describes the issuance of a dangerous drug in accordance with a prescription written by a practitioner. Soto told Officer Scott that he had no prescription for the drug. Section 483.-042(a)(2) describes the delivery of the dangerous drug by a practitioner with a label attached containing the name and address of the practitioner, the date the drug is delivered, the name of the patient, and other information, including the name and strength of the drug and instructions for its use. Soto’s Pamelor did not include such a label. Consequently, Officer Scott had probable cause to arrest Soto for the possession of a dangerous drug, a Class A misdemeanor. Soto’s arrest was therefore valid, even though Officer Scott mistakenly believed Pamelor was a controlled substance. See Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App.1986).

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Bluebook (online)
810 S.W.2d 861, 1991 Tex. App. LEXIS 1447, 1991 WL 99928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-state-texapp-1991.