Thomas v. State

807 S.W.2d 786, 1991 WL 18290
Court of Appeals of Texas·Decided March 21, 1991·No. 01-89-00246-CR·Published·Cited by 37 cases

Opinions

OPINION ON MOTION FOR REHEARING

HUGHES, Justice.

The State has filed a motion for rehearing, or alternatively, a motion for rehearing en banc. Tex.R.App.P. 100(a), (f). The State argues (1) our initial opinion failed to view the evidence in the light most favorable to the verdict and was at odds with prior opinions of this Court in Alejandro v. State, 725 S.W.2d 510 (Tex.App. — Houston [1st Dist.] 1987, no pet.), and Manuel v. State, 782 S.W.2d 335 (Tex.App. — Houston [1st Dist.] 1989, pet. ref’d), and (2) the totality of the circumstances supported a rational finding that appellant knowingly possessed cocaine. We sustain these arguments, but we also sustain appellant’s second point of error in his appellate brief, which we had not previously considered.

Accordingly, we grant the motion for rehearing, withdraw our former opinion dated July 26, 1990, substitute this opinion in lieu thereof, reverse the judgment, and remand the cause to the trial court for further proceedings.

This is an appeal from a conviction for possession of' a controlled substance, cocaine, weighing less than 28 grams. After the jury found appellant, Willie Thomas, guilty as charged in the indictment, the trial court found the enhancement paragraphs true and assessed punishment at 35 years confinement.

On May 20, 1988, during daylight hours, Houston police officers went to the home of appellant’s aunt with a warrant to arrest appellant for a different crime. The officers placed appellant under arrest and searched his clothing for weapons. Officer Spradlin took appellant’s wallet out of his back pocket and opened it to find identification. Inside, he found two small plastic packets. Officer Spradlin testified that the packets were small “baggies” and contained “a little powder substance” that was visible to the naked eye. He stated that he had seen similar baggies containing a powdery substance on many occasions before and that he believed they contained cocaine residue.

Officer Rivera testified that he had been with the Houston Police Department for 13 years. He stated that he had seen cocaine on many occasions and was familiar with what it looked like. Based on his observation of the packets that Officer Spradlin found in appellant’s wallet, Officer Rivera believed the substance in the packets was cocaine.

Beulah Moore, appellant’s aunt, was present during the arrest. She was standing in the doorway, five or six feet away, when the officers found the plastic bags in appellant’s wallet. She did not see anything in the bags. She also said that she had not seen those kind of baggies before, and had no idea what would be in them.

The officers took the plastic bags to the police department’s narcotics lockbox for testing by the laboratory. Officer Spradlin testified that he personally delivered the plastic bags to the lockbox. Judy Nohavit-za, the chemist for the police department, testified that she personally retrieved the contents from the lockbox. The contents [788] were then given a lab number, inventoried, and tested.

Nohavitza said the substance was cocaine. She stated that the residue had to be washed out of the bags before testing. They ran several tests, and found 0.8 milligrams of pure cocaine. The weight was determined through an ultraviolet test. The cocaine itself could not be weighed because it was such a small amount. No-havitza said that the residue was destroyed on analysis because it was such a small amount. The cocaine itself was not available to be introduced into evidence during trial.

In his first point of error, appellant claims the amount of cocaine in the plastic bags was no more than a mere trace; therefore, the evidence was insufficient to support the conviction. In support of his argument, appellant relies on Greer v. State, 163 Tex.Crim. 377, 292 S.W.2d 122 (1956); Pelham v. State, 164 Tex.Crim. 226, 298 S.W.2d 171 (1957); and Coleman v. State, 545 S.W.2d 831 (Tex.Crim.App.1977). Appellant also contends the evidence was insufficient to link him to the contraband and cites Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987).

In reviewing the sufficiency of the evidence, we view it in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984); Barron v. State, 773 S.W.2d 44, 46 (Tex.App.— Houston [1st Dist.] 1989, pet. ref’d). We must then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Casillas v. State, 733 S.W.2d 158, 160 (Tex.Crim.App.1986), appeal dism’d, 484 U.S. 918, 108 S.Ct. 277, 98 L.Ed.2d 238 (1987); Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986); Barron, 773 S.W.2d at 46.

In Greer, the testimony of two police officers showed that the defendant had in her possession a small bottle cap in which was a small piece of wet cotton. 292 S.W.2d at 122. A chemist extracted the contents of the bottle top with hot water and evaporated that to dryness. Id. Tests on the residue indicated that the material extracted from the cotton was heroin. Id. The court stated that it would not convict a defendant for possession of a small piece of wet cotton containing a trace of heroin. Id.

In Pelham, police officers pursued and stopped a car driven by the defendant that ran a red light. 298 S.W.2d at 172. During the pursuit, they noticed someone shaking newspapers out of the window and some kind of dust flying from the newspapers. Id. One of the officers testified that he smelled burning marihuana and that there was a small quantity of marihuana dust and seeds on the car’s back seat. Id. After the car’s occupants were arrested and taken to the police station, an officer scraped some dust off the defendant’s pants’ pocket. Id. A chemist with a microscope was able to find particles of marihuana among the scrapings. Id. He was unable, however, to express any opinion concerning the amount or weight of the marihuana particles found. Id. At the time of the conviction in Pelham, there was no minimum limit for prosecution for possession of marihuana. The court reversed the conviction, holding that the facts did not show possession of marihuana where a microscope was required to identify the scrapings.

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Thomas v. State, 807 S.W.2d 786, 1991 WL 18290 (Tex. Ct. App. 1991).

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