Harris, Andre Lavelle v. State ( 2002 )

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Date issued September 26, 2002

In The

Court of Appeals

For The

First District of Texas

NOS. 01-01-00426-CR

01-01-00427-CR

____________

ANDRE LAVELLE HARRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 845114 and 845115

O P I N I O N

  A jury found appellant, Andre Lavelle Harris, guilty of possession of cocaine and possession of 3,4 - methylenedioxy methamphetamine⁽¹⁾    . The trial court assessed punishment at six years and one year confinement for the respective offenses. We affirm.

Facts

   In the early morning hours of May 19, 2000, Houston Police Department Narcotic Division Officer George Craig was conducting an undercover investigation at Club Some and saw appellant engage in what he believed to be two drug transactions. Craig testified that appellant reached to the right side of his body and exchanged a tablet-like object for money. Craig also testified that, after one transaction, the buyer placed the tablet into his mouth. He further testified that, based on his experience, appellant's behavior was consistent with the common practice of selling ecstasy in nightclubs and that this nightclub was known for the trafficking of narcotics.

   After he saw these transactions, Craig signaled other officers and gave them a description of appellant and his location in the club. Officers took appellant out of the nightclub, searched him, and found a small baggie containing nine tablets of ecstasy and a baggie containing 151.8 milligrams of cocaine, both in appellant's right rear pants pocket. Officers also found a baggie containing white powder residue and $56.06, including two $20.00 bills. Craig and appellant both testified that an ecstasy tablet commonly sells for $20.00.

   Appellant testified that he did not sell ecstasy or cocaine at the nightclub. Rather, he testified that he stepped on the baggies containing the ecstasy and the cocaine on steps at the nightclub and he placed them in his pocket, but that it was too dark for him to see what the baggies contained. Appellant was unable to account for a baggie containing white power residue found in his jacket pocket.

  Voir Dire

   In his first point of error, appellant argues that the prosecutor conducted an improper voir dire by attempting to commit the venire to vote for a finding of guilt upon facts identical to the facts of appellant's case. Specifically, appellant contends that the prosecutor asked the venire members if they could convict a person based on the testimony of one witness.

   A defendant must object to a prosecutor's statement made during voir dire in order to preserve a complaint for review on appeal. Tex. R. App. P. 33.1; see also Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Where no objection is made, nothing is presented for review. Bias v. State, 937 S.W.2d 141, 144 (Tex. App.--Houston [1st Dist.] 1997, no pet.). Appellant did not object to the prosecutor's statements; therefore, he has not preserved this point of error.

       Moreover, the prosecutor's questions did not commit the venire to the facts of appellant's case. Here, the prosecutor asked the venire members if they could convict a person based on the testimony of one witness if they believed the testimony of that witness beyond a reasonable doubt. The prosecutor's hypothetical situation was different from the facts of appellant's case. The hypothetical involved an assault case and a single witness, whereas appellant was charged with possession of controlled substances and there was more than one witness.

   Hypothetical fact situations may be employed during voir dire to explain and illustrate how the law may be applied. Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997). The State may not, however, question the venire in an attempt to commit its members to a specific set of facts. Id. We conclude that the prosecutor's questions were so general in scope that they were not an impermissible attempt to commit the venire to the facts of appellant's case. See id.

     We overrule appellant's first point of error.

      Sufficiency of the Evidence

In his third and fourth points of error, appellant argues that the evidence was legally and factually insufficient to show that he knowingly possessed ecstasy and cocaine.

  In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict, and ask whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); White v. State, 59 S.W.3d 368, 369 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). To show unlawful possession of a controlled substance, the State must show that (1) appellant exercised actual care, control, or custody of contraband, (2) he was conscious of his connection with it, and (3) he knew it was contraband. Hankton v. State, 23 S.W.3d 540, 544 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).

   Craig and appellant both testified that appellant had baggies of ecstasy and cocaine in his pants pocket when he was searched by police. There was, therefore, no dispute that appellant exercised actual care, control, or custody of the drugs. Craig testified that he saw appellant reach into his pocket and exchange a tablet-like object for money. Craig testified that police found the baggies of ecstasy and cocaine in the same pocket from which appellant produced the items he sold in the nightclub. Craig also testified that he saw one customer place what appeared to be a tablet in his mouth immediately after he completed the transaction with appellant. Craig also testified that appellant's behavior was consistent with the sale of drugs and that the nightclub was known for the sale of narcotics. Viewing the evidence in the light most favorable to the verdict, a jury could rationally have found that appellant knew the contents of the baggies were ecstasy and cocaine. See White, 59 S.W.3d at 369.

   We overrule appellant's third point of error.

  Appellant also argues that the evidence was factually insufficient to show that he knowingly possessed the controlled substances. In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); White, 59 S.W.3d at 369.

    Appellant testified that he was unaware of the contents of the baggies found in his back pocket because, after he found them on the ground, he was unable to determine their contents because of poor lighting. This testimony conflicts with Craig's testimony that appellant was selling drugs at the nightclub. The jury, as fact finder, was the sole judge of the weight and credibility of the witnesses' testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

  Appellant testified that, when questioned by police at the nightclub, he first told them that the cocaine and ecstasy were gifts from an unknown person. The jury was free to resolve the discrepancies in favor of the State. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We conclude the evidence was factually sufficient to show appellant knowingly possessed the cocaine and ecstasy seized at the nightclub. See King, 29 S.W.3d at 563.

   We overrule appellant's fourth point of error.

    Jury Argument

In his second point of error, appellant argues that, during closing argument, the prosecutor improperly asked the jury to return a guilty verdict because the community expected such a verdict.

   To complain about an improper jury argument on appeal, appellant must show that he objected to the statement and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Appellant did not object to the State's question; therefore, he has not preserved error for review on appeal. See Tex. R. App. P. 33.1; Cockrell, 933 S.W.2d at 89.

   Moreover, the prosecution's argument was not improper. A permissible jury argument falls within one of the following general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) responses to opposing counsel's arguments, and (4) pleas for law enforcement. Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd).

   During closing argument, the prosecutor stated the following:

   I submit to you, ladies and gentlemen of the jury, again, that there is absolute overwhelming evidence of guilt. Please go back, deliberate, choose a foreman, concentrate on the issues on the case and without delay return a verdict that is right, right for the people of our community.

The prosecutor's statement did not attempt to inform the jury of the community's expectation of its verdict. The jury was not told that the community wanted a verdict of guilt. Instead, the prosecutor argued that the drugs appellant was selling were dangerous to children, and he merely asked the jury to do what was right for the community. We conclude that the prosecutor's statements were a proper plea to law enforcement. See id.; see also Johnson v. State, 773 S.W.2d 721, 728 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd) (stating that a permissible jury argument asks the jury to be the voice of the community but not the ears of the community); Morrow v. State, 757 S.W.2d 484, 494 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) (holding that argument that drugs are detrimental to society was proper plea to law enforcement).

   We overrule appellant's second point of error.

  Conclusion

We affirm the judgment of the trial court.

     Evelyn V. Keyes

Justice

Panel consists of Justices Hedges, Keyes, and Duggan.⁽²⁾

Do not publish. Tex. R. App. P. 47.

1.
3,4 - methylenedioxy methamphetamine is commonly known as ecstasy and is sold in tablet form.
2.
The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.