Daryl Wayne Alexander v. State

Opinion issued April 15, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00300-CR

DARYL WAYNE ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1189119

MEMORANDUM OPINION

A

jury convicted Daryl Wayne Alexander of the state jail felony of possession of

a controlled substance, cocaine, weighing less than one gram. See

Tex. Health & Safety Code Ann.

§§ 481.102(3 )( D), 481.115(a)–(b) (Vernon Supp.

2009). The trial court assessed

punishment at two years’ confinement pursuant to Alexander’s agreement with the

State. On appeal, Alexander contends

that (1) the State failed to present legally and factually sufficient evidence

that Alexander possessed the cocaine; (2) the trial court erred in denying

Alexander’s motion to suppress evidence because the cocaine was not in plain

view and the arresting officers unreasonably believed that Alexander possessed

cocaine at the time of arrest; and (3) the trial court erred in denying

Alexander’s proposed article 38.23 jury instruction. We conclude that (1) sufficient evidence

supports the jury’s verdict, (2) the trial court did not err in denying the

motion to suppress, and (3) Alexander waived his complaint about the jury

charge. We therefore affirm.

Background

On October 25, 2008, Houston Police

Department Officers McNichols, Williams, and Sampson patrolled downtown Houston

on bicycle. Around eight o’clock in the

evening, Officer McNichols saw Alexander’s car parked under the Pierce Elevated

section of Interstate 45. McNichols

noticed that the passenger side door was slightly open, the driver’s side

window was rolled down about six inches, and the two passengers, Alexander and Jack

Hill, had angled their heads toward the middle of the car. Because this area is known for its drug and

prostitution problem, McNichols decided to investigate further.

McNichols testified that it was not

yet dark outside when he noticed the vehicle, and the remaining natural light

combined with the artificial lighting under the bridge of the Pierce Elevated

allowed him to see “very well.” While still

on his bicycle, he pulled up to Alexander’s car, leaned against the door, and

saw that Alexander, sitting in the passenger’s seat, and Hill, in the driver’s

seat, each held what appeared to be a small rock of crack cocaine. McNichols then called to Officers Williams

and Sampson, who had ridden several feet ahead while McNichols stopped at

Alexander’s car, and asked them to bring their flashlights. Officer Sampson used his flashlight and

Officer Williams used the light mounted on his bicycle to look into Alexander’s

car, and all three officers observed Alexander and Hill looking down at the cocaine

rocks in their hands. At this point,

Alexander and Hill noticed the flashlights and the officers outside the car. After the officers removed both men from the

vehicle, Hill admitted that the rocks were crack cocaine that he had bought

down the street and he was splitting them with Alexander. The rocks all field-tested positive for

cocaine. Criminalist James Miller

testified that he later confirmed that the substance was cocaine, and the rocks

held by Hill and Alexander weighed 0.05 and 0.07 grams, respectively. Miller also stated that he labeled the bag

containing the smaller quantity with an “A” and the bag containing the larger

quantity, a rock which was broken into two pieces, with a “B.” The trial court admitted both bags of cocaine

into evidence.

McNichols testified that although he

encountered Alexander and Hill around eight o’clock in the evening, there was

still enough light to see into the vehicle and he asked his fellow officers for

their flashlights only to “get a better view.”

McNichols also stated that he had “seen crack cocaine before” and thus

suspected that the substance was cocaine, but he could not be positive until

the officers performed a field test. Officer

Williams testified that, at the time, the only available light was from the

streetlights under the Pierce Elevated. He

initially stated that was able to see into Alexander’s vehicle without the aid

of a flashlight; however, on cross-examination, he conceded that additional

lights beyond the streetlights were necessary to see inside the car.

After the State rested, Alexander

moved for an instructed verdict on the grounds that the State failed to prove which

of the two bags of cocaine Alexander possessed.

The trial court allowed the State to recall Officer McNichols, who

testified that he took the cocaine from Hill, placed it in a piece of paper,

and kept that rock separate from the rocks taken from Alexander until Officer

Williams placed the rocks into the two separate bags at the narcotics room. According to McNichols, the bag Miller

labeled with a “B,” which held 0.07 grams of cocaine, contained the cocaine

taken from Alexander. McNichols

recognized it because that bag contained two pieces of cocaine and Alexander

held two rocks at the time of his arrest.

The trial court denied Alexander’s motion for an instructed verdict.

Alexander called Jack Hill to testify

on his behalf. Hill testified that he

was walking up the street when he saw Alexander’s car parked under the Pierce

Elevated and recognized Alexander sitting inside. According to Hill, he showed Alexander the

cocaine but never intended to share any of it, and Alexander only took

possession of a rock after they noticed the officers standing outside the

car. Hill also testified that the

windows of the car were tinted, the driver’s side window was closed, minimal

artificial lighting existed under the Pierce Elevated, and one could see “very,

very little” inside the car without the aid of a flashlight. On cross-examination, Hill stated that he

could see Alexander sitting inside through the window without a flashlight, but

he “had walked all the way up to the car” to do so.

After both parties rested, Alexander

re-urged his pretrial motion to suppress the cocaine and his motion for an

instructed verdict. After the trial

court denied these motions, defense counsel then made the following request: “And we’d ask the Court also to insert in the

charge a 38.23 instruction.” The trial

court denied this request as well.

Discussion

Sufficiency of the Evidence

In

his first issue, Alexander contends that the State failed to present legally

and factually sufficient evidence that Alexander possessed the cocaine. In a legal sufficiency review, we view the

evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia , 443

U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Salinas

v. State , 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The fact-finder is the sole judge of the

weight and credibility of the evidence. Margraves v. State , 34

S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled

on other grounds by Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009). The fact-finder may choose to believe a

witness even if contradictory evidence is introduced, and may believe some or

all of a witness’s testimony. See Sharp v. State , 707

S.W.2d 611, 614 (Tex. Crim. App. 1986).

We may not reevaluate the weight and credibility of the evidence and

substitute our judgment for that of the fact-finder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000).

In

a factual sufficiency review, we view all of the evidence in a neutral light

and we will only set aside the verdict if the evidence, though legally

sufficient, is so obviously weak that the verdict is (1) “clearly wrong and

manifestly unjust” or (2) against the great weight and preponderance of the

evidence. Watson v. State , 204 S.W.3d 404 , 414–15 (Tex. Crim. App. 2006)

(quoting Johnson v. State , 23 S.W.3d

1, 11 (Tex. Crim. App. 2000)). We cannot

decide that the verdict is “clearly wrong or manifestly unjust” just because,

based on the quantum of evidence presented, we would have voted to acquit had

we been on the jury. See id. at

417. To remand on factual insufficiency

grounds, the record must contain an objective basis that the great weight and

preponderance of the evidence contradicts the verdict. See id. The jury is in the best position to evaluate

the credibility of the witnesses, and thus we defer to the jury’s

determinations. Marshall v. State , 210 S.W.3d 618, 625

(Tex. Crim. App. 2006). In a

factual sufficiency review, we must discuss the evidence that, according to the

appellant, best supports his claim and undermines the verdict. See Sims

v. State , 99 S.W.3d 600, 601 (Tex. Crim. App.

2003).

A

person commits the state jail felony of possession of a controlled substance if

he knowingly and intentionally possesses the substance—here, cocaine—in an

amount less than one gram. Tex. Health & Safety Code Ann.

§ 481.115(a)–(b) (Vernon Supp. 2009).

The State must prove that the defendant (1) exercised actual care,

custody, control, or management over the substance and (2) knew that the

substance possessed was contraband. Id. § 481.002(38) (Vernon Supp.

2009); Poindexter v. State , 153

S.W.3d 402, 405 (Tex. Crim. App. 2005); Pena

v. State , 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d).

A.

Legal Sufficiency

Alexander

acknowledges that the State presented evidence which tends to prove intentional

and knowing possession: Officers

McNichols and Williams both testified that they saw Alexander holding what

appeared to be crack cocaine. Officer

McNichols testified that the driver’s window was rolled down about six inches,

and he leaned up against Alexander’s car to look inside. McNichols could see “very well,” even without

the aid of a flashlight, though he did use another officer’s flashlight to “get

a better view” of the interior. McNichols

also related a conversation the officers had with Hill after they removed him

from the vehicle, during which Hill admitted that the substance was crack

cocaine, and that he “had bought it down the street and . . . was splitting it with

[Alexander].” Officer Williams also

testified that after McNichols called him back to Alexander’s vehicle, he could

see into the vehicle using both Officer Sampson’s flashlight and his own bicycle

light, and he “observed both of the men inside the vehicle looking down at what

appeared to be [crack cocaine] rocks.” Williams

clarified that both Hill and Alexander were holding rocks. All three officers stood outside the vehicle

and observed Hill and Alexander holding the cocaine in their hands prior to

ordering them out of the car.

Alexander

contends that the State failed to prove which bag of cocaine admitted into

evidence belonged to Alexander, because neither McNichols nor Williams made any

notations on the bags, and although Miller testified that he labeled the bags,

he did not indicate which bag belonged to Alexander. Miller testified that he labeled State’s

Exhibit 3 with an “A” and Exhibit 2 with a “B.”

Officer McNichols then testified that Exhibit 2 contained the cocaine Alexander

possessed. According to McNichols, he

took the cocaine from Hill, which consisted of one solid piece, placed it in a

piece of paper, and kept it separate from the cocaine taken from Alexander,

which consisted of multiple pieces. McNichols

carried the cocaine he recovered from Hill to the narcotics room and watched

Williams place the cocaine from Hill and the cocaine from Alexander into the

two separate bags. Exhibit 3 contained

one solid rock, whereas Exhibit 2 contained two pieces of cocaine. The officers’ testimony sufficiently links

Alexander with the cocaine admitted as Exhibit 2.

Alexander

further contends that the State presented legally insufficient evidence to

support his conviction because McNichols and Williams gave inconsistent

testimony regarding which side of the vehicle they each approached, which is

important to determining whether they could see inside the passenger side of

the car. McNichols testified that he

approached the driver’s side of Alexander’s car to look inside. Williams, however, testified that he was the

one who rode up to the driver’s side, while McNichols went to the passenger’s

side of the car. Regardless of which

side of the vehicle each officer approached, both McNichols and Williams

repeatedly testified that they approached opposite sides of the car and they both

could see inside the car to view Alexander holding crack cocaine. When evaluating the legal sufficiency of the

evidence, we resolve all inconsistencies in the evidence in favor of the

verdict. Curry , 30 S.W.3d at 406 . Here, regardless of their positions, both

officers testified that they viewed Alexander holding cocaine.

Viewing the evidence in the light

most favorable to the verdict, we conclude that a rational jury could have

found beyond a reasonable doubt that Alexander exercised care, custody,

control, or management over the cocaine.

Thus, we hold that the evidence is legally sufficient to sustain his

conviction.

B.

Factual Sufficiency

Alexander

additionally contends that the evidence, when viewed in a neutral light, is so

weak that the verdict is clearly wrong and manifestly unjust. According to Alexander, the following

evidence undermines the jury’s verdict: it

was dark outside when the officers approached Alexander’s car; the inside of

the car was not lit and the officers admitted they needed more light than just

the streetlights under the Pierce Elevated to see the interior; Hill testified

that the car’s windows were closed and tinted; Hill further testified that

Alexander only touched the cocaine to give it to the officers when Hill

hesitated; and the State failed to prove which bag of cocaine belonged to

Alexander. Even when we consider these

facts, the great weight and preponderance of the evidence does not contradict

the verdict, nor is the evidence of possession so weak as to render the verdict

clearly wrong and manifestly unjust.

Although

the officers acknowledged that it was dark outside when they investigated

Alexander’s vehicle, both stated that they could see into the interior. McNichols testified that he could see “very

well,” and he could see into the interior of the vehicle without the aid of a

flashlight, though he asked the other officers to bring a flashlight in order

to “get a better view.” Both McNichols

and Williams testified that the window of the car was rolled down about six

inches, and neither could remember if the windows were tinted. Prior to calling Officers Williams and

Sampson back to the vehicle, McNichols leaned up against the door to the car,

looked inside, and observed both Alexander and Hill holding cocaine. According to McNichols, Alexander and Hill

did not notice the officers standing outside the car until after the other

officers flashed their lights into the vehicle.

McNichols continually observed Alexander holding cocaine from the time

McNichols first looked into the vehicle until the time of Alexander’s arrest.

Officer

Williams initially testified that he could see into the interior without a

flashlight, however, he later agreed with defense counsel that he “would need

more than just the lights that are under the Pierce Elevated” to see into the

car. Regardless of whether Williams

needed additional light to see into Alexander’s vehicle, he testified that he

could see both Alexander and Hill holding cocaine. Hill, testifying on Alexander’s behalf, stated

that the windows were tinted and closed, but admitted that it was possible to

see inside the car without a flashlight—although difficult. On cross-examination, Hill admitted that he

could see Alexander sitting inside the vehicle before he entered it, though he

had to walk “all the way up to the car” and put his hands on the glass. Hill further testified that he climbed in

Alexander’s vehicle approximately fifteen to twenty seconds prior to the

officers’ arrival. While in the car, he

cut the cocaine he had just purchased, however, he was not planning to share

any of it with Alexander. According to

Hill, Alexander did not hold the cocaine prior to the officers identifying

themselves, but instead Alexander only took the cocaine to give to the officers

after they ordered Hill to give up what he was holding. Officers McNichols and Williams both

testified that they saw Alexander and Hill holding cocaine prior to their awareness

of the officers’ presence outside the vehicle.

The jury is in the best position to

evaluate the credibility of each witness.

Marshall , 210

S.W.3d at 625 . Even when

contradictory evidence is introduced, the jury may choose to believe a witness,

and they may choose to believe some or all of a witness’ testimony. Sharp ,

707 S.W.2d 614 .

A reasonable jury could choose to believe the officers’ testimony that

they could see into the vehicle and could see Alexander holding the cocaine

prior to his encounter with the police.

Viewing all of the evidence in a neutral light, we hold that the

evidence is factually sufficient to support the jury’s verdict. [1]

Legality of the Plain View Seizure

Alexander

further contends that the trial court erred in denying his motion to suppress

the cocaine because the officers conducted an illegal search of his

vehicle. We review a trial court’s

ruling on a motion to suppress for abuse of discretion. Shepherd

v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We view the evidence in the light most

favorable to the trial court’s ruling. Wiede v. State , 214 S.W.3d 17, 24 (Tex.

Crim. App. 2007) (quoting State v. Kelly ,

204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).

When ruling on a motion to suppress, the trial court is the “sole and

exclusive trier of fact and judge of the credibility of the witnesses as well

as the weight to be given their testimony.

The trial judge may choose to believe or disbelieve any or all of a

witness’ testimony.” Green v. State , 934 S.W.2d 92, 98 (Tex.

Crim. App. 1996). We defer to a

trial court’s express or implied determination of historical facts, as well as

to its application of law to fact questions if those questions turn on the

evaluation of credibility and demeanor. See Guzman v. State , 955

S.W.2d 85, 89 (Tex. Crim. App. 1997).

We review de novo the trial court’s application of search and seizure

law. Carmouche v. State , 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). We will

sustain the trial court’s ruling if it is reasonably supported by the record

and correct on any theory of law applicable to the case. Laney v. State , 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).

Generally,

a warrantless search “is considered per se unreasonable subject to a few

specifically defined and well established exceptions” and violates the Fourth

Amendment. McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (citing Minnesota v. Dickerson , 508 U.S. 366,

372 , 113 S. Ct. 2130, 2135 (1993)).

Seizing contraband located in plain view, however, does not violate the

Fourth Amendment because the “seizure of property in plain view involves no

invasion of privacy and is presumptively reasonable.” Walter

v. State , 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citing Texas v. Brown , 460 U.S. 730 , 738–39,

103 S. Ct. 1535, 1541 (1983)). Two

requirements must be met to satisfy the plain view doctrine: (1) the law enforcement officers must have a

right to be where they are, and (2) it must be immediately apparent to the

officers that the seized item constitutes evidence, meaning that the officers

must immediately have probable cause to associate the item with criminal

activity. See id. ; Horton v. California ,

496 U.S. 128, 136 , 110 S. Ct. 2301, 2308 (1990). The officers must not have violated the

Fourth Amendment in arriving at the place from which they can observe the

evidence in plain view. See Walter , 28 S.W.3d at 541 ; Brown , 460 U.S. at 739 , 103 S. Ct. at

1542 (“[I]f, while lawfully engaged in an activity in a particular place,

police officers perceive a suspicious object, they may seize it immediately.”).

Alexander

contends that the police illegally searched his car because it was nighttime,

the car windows were closed and tinted, and flashlights were necessary to see

inside; thus, the cocaine was not in plain view. As we have discussed, McNichols, Williams,

and Hill all testified that they could see into Alexander’s vehicle.

In denying Alexander’s motion to

suppress, the trial court impliedly found that Officers McNichols and Williams

could see into Alexander’s vehicle. We

defer to this implied historical fact-finding.

See Guzman , 955

S.W.2d at 89 . Even though the

officers used flashlights and the light on Williams’ bicycle, using a

flashlight to see into the interior of Alexander’s car does not constitute a

search and therefore does not violate the Fourth Amendment. See

Brown , 460 U.S. at 739–40, 103 S. Ct. at 1542 (“It is likewise beyond

dispute that Maples’ action in shining his flashlight to illuminate the

interior of Brown’s car trenched upon no right secured to the latter by the

Fourth Amendment. . . . ‘[The] use of a searchlight is

comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.’” (quoting

United States v. Lee , 274 U.S. 559,

563 (1927))). Likewise, even though the

officers had to walk up to Alexander’s car and look in through the open window

to see the cocaine, their actions do not violate the Fourth Amendment. Alexander parked his car in a public place

underneath the Pierce Elevated: any

member of the public could walk up to Alexander’s car and look inside from

numerous different angles. See id. at 740,

103 S. Ct. at 1542 ; Walter , 28 S.W.3d

at 544 . There is no reason why Officers

McNichols and Williams “should be precluded from observing as an officer what would

be entirely visible to [them] as private citizen[s].” Brown , 460 U.S. at 740 , 103 S. Ct. at 1542 . Because “inquisitive passersby” could view the

inside of Alexander’s car, Alexander had no legitimate expectation of privacy

in the interior of the vehicle, and thus the officers’ conduct leading to their

observation of the cocaine in Alexander’s hand does not violate the Fourth

Amendment. Id.

Alexander

further contends that the State failed to establish that the officers had

probable cause to associate the discovered substance with criminal activity

because the State did not elicit testimony from Officers McNichols and Williams

regarding their training and experience in identifying crack cocaine. To determine if an officer had probable

cause, we consider the totality of the circumstances, including the training,

knowledge, and experience of the officer.

See Wiede , 214

S.W.3d at 25 . Probable cause

exists when “the known facts and circumstances are sufficient to warrant a man

of reasonable prudence in the belief that contraband . . . will

be found.” See id. at 24 . In Wiede ,

the arresting officer testified that he had worked for DPS for seven years and

that he was “trained to recognize different types of controlled substances and

the legal standards for conducting different types of searches.” Id. at 27 . According

to the Court of Criminal Appeals, the officer’s “testimony about his training

and his opinion concerning the contents of the plastic bag provided a basis

from which the trial judge could have reasonably inferred that [the officer]

possessed specific knowledge that drugs are commonly packaged, carried, or

transported in plastic bags.” Id.

Although neither Officer McNichols

nor Officer Williams testified about the training they received in identifying

controlled substances, they both stated that they worked in the “special ops

division” of the Houston Police Department.

McNichols had been employed by HPD for approximately nine years and had

been a member of the special ops division for five, while Williams had been

employed by HPD for eleven and a half years.

Officer McNichols further explained that his duties as a member of this

division involve patrolling downtown on bicycle, including the area surrounding

the Pierce Elevated, which McNichols called a “high drug and prostitution

area.” McNichols also stated that he had

seen crack cocaine before, although he could not definitively state that the

substance Alexander held was cocaine until he performed a field test. Both McNichols and Williams testified that

the substance in Alexander’s hand appeared to be crack cocaine. McNichols and Williams’ testimony regarding

their experience with HPD and the special ops division, their previous

encounters with crack cocaine, and their opinions regarding the identity of the

substance Alexander held provided a sufficient basis from which the trial court

could reasonably infer that the officers had immediate probable cause to

believe that Alexander possessed cocaine.

We hold that because the officers observed the cocaine in plain view, they

immediately had probable cause to believe that the substance was associated

with criminal activity. Accordingly, the

trial court did not abuse its discretion in denying Alexander’s motion to

suppress evidence.

Denial of Requested Article 38.23 Instruction

In

his third issue, Alexander contends that the trial court erred in denying his

requested jury instruction pursuant to article 38.23 of the Texas Code of

Criminal Procedure. According to

Alexander, because the officers could not have seen the cocaine located inside

his vehicle, the search, seizure, and arrest were all illegal, and the trial

court should have excluded the cocaine.

Article 38.23 provides:

No evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws of the State of Texas,

or of the Constitution or laws of the United States of America, shall be

admitted in evidence against the accused on the trial of any criminal

case. In any case where the legal evidence

raises an issue hereunder, the jury shall be instructed that if it believes, or

has a reasonable doubt, that the evidence was obtained in violation of the

provisions of this Article, then and in such event, the jury shall disregard

any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon

2005). The trial court must

include an article 38.23 instruction only if a factual dispute exists as to how

the particular evidence was obtained. See Balentine v. State , 71 S.W.3d 763, 773 (Tex. Crim. App. 2002). The defendant must meet three requirements

before he is entitled to an article 38.23 instruction: (1) the evidence must raise an issue of fact;

(2) the evidence on that fact must be affirmatively contested; and (3) the

contested factual issue must be material to the lawfulness of the challenged

conduct in obtaining the evidence. Madden v. State , 242

S.W.3d 504, 510 (Tex. Crim. App. 2007).

If no disputed factual issue exists, the trial court determines the

legality of the challenged conduct as a matter of law. Id. If other undisputed facts are sufficient to

establish the lawfulness of the conduct, the contested factual issue is not

material and the defendant is not entitled to a jury instruction on the fact

issue. See id. at 510–11.

In

Madden , the Court of Criminal Appeals

specified that the defendant must request an article 38.23 instruction “on a

specific historical fact or facts.” Id. at 511 . The Madden

court held that the defendant was not entitled to a jury instruction regarding

whether the officer had reasonable suspicion to detain the appellant, because

“[l]ooking just at appellant’s requested jury

instruction, neither the trial judge, the court of appeals, nor ourselves could

have any idea of what specific fact or facts appellant believed were in

dispute.” Id. at 511–12. Similarly, Alexander’s defense counsel only

made the following request: “And we’d

ask the Court also to insert in the charge a 38.23 instruction.” Defense counsel did not specify which

disputed historical facts the jury should determine. Alexander did not request an Article 38.23

instruction on a specific historical fact, and thus he has not preserved any

error for appeal.

Conclusion

We hold that the State presented

legally and factually sufficient evidence that Alexander possessed a controlled

substance, cocaine. Additionally, the

arresting officers conducted a proper plain view seizure of the cocaine and

thus the trial court did not abuse its discretion in denying Alexander’s motion

to suppress the cocaine. Further,

because Alexander did not request an article 38.23 instruction on a specific

historical fact, Alexander failed to preserve any error in the jury charge. We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Jennings,

Hanks, and Bland.

Do Not Publish. Tex. R. App. P. 47.2( b ).

[1] Although Alexander also contends that the jury’s

verdict is clearly wrong and manifestly unjust because the State failed to

prove which bag of cocaine belongs to Alexander, he does not point to any

evidence in the record that undermines or contradicts McNichols’ testimony that

State’s Exhibit 2 contained the cocaine that Alexander held in his hand.