King v. State

CLINTON, Judge,

concurring.

A question lurking about is whether as a matter of law the substance itself must be visible to the naked eye for a factfinder to conclude that an accused “knew” the substance possessed is that which is alleged. Stated in terms of this cause, must the State establish that visible powdery or other form of cocaine was on, or mingled with residue of burned material in, a crack pipe?. 1

*705 The Court may not assume the law requires the State to prove that an accused “knows the residue remaining in his pipe was cocaine;” it requires the State to prove only that the accused “knowingly possessed cocaine” as charged in the indictment. As is true in most cases, “knowing possession” must usually be shown circumstantially, e.g., Arnott v. State, 498 S.W.2d 166, 177 (Tex.Cr.App.1973), and here all the facts and circumstances outlined in the various opinions are sufficient to permit a rational factfinder to draw reasonable inferences leading to the conclusion that appellant knew the “crack pipe” he possessed contained cocaine and its “residue.” 2

In the instant cause the “rule of thumb” developed below, see n. 2 ante, is not applicable because, as all seem to acknowledge, the weight of the substance in the pipe could not be quantitatively measured. King v. State, 857 S.W.2d 718, 720 (Tex.App.—Houston [14th] 1933). 3 Thus, there must be some relevant evidence other than mere possession of the “crack pipe” to prove that appellant knew the substánce in the pipe was cocaine. Shults v. State and Daniels v. State, both supra, n. 1 ante. The court of appeals factually found just such other evidence, i.e., cocaine was visible in a crack pipe and was still damp with saliva; that is sufficient to support its ultimate conclusion that appellant *706 knew the substance in his possession was cocaine. King, supra, at 720 .

The courts of appeals are responsible for the resolution of factual disputes, and in exercising the reviewing function of this Court we must “decline to substitute our own judgment on ultimate questions of fact for that of the lower court.” Arcila v. State, 834 S.W.2d 357, 360-361 (Tex.Cr.App.1992).

Nonetheless, we granted review to examine competing contentions of the parties concerning the status of “visibility” of a controlled substance as a factor in determining “knowing possession.” The Court includes among germane inculpatory ■ circumstances that the “residue containing the cocaine was visible on the ‘crack pipe,’” although the actual cocaine was “unmeasurable, unweighable and invisible.’’ Maj. opinion, at 704. Thus to my satisfaction the Court is implicitly concluding as a matter of law that the ■State need not establish “visibility” of powdery or other form of cocaine itself to enable the jury to find “knowing possession” of that controlled substance and, therefore, to conclude that the State proved the essential elements of the offense alleged beyond a reasonable doubt.

With that understanding, I join the judgment of the Court.

McCORMICK, P.J., and MANSFIELD, J., join in this opinion.

. Early on, the Court seems to have resolved the issue of "knowing possession” on a factual basis, case-by-case, guided at first by a notion that the substance seized must be a "useable amount." See, e.g., Greer v. State, 163 Tex.Cr.R. 377 , 292 S.W.2d 122 (1956) (former narcotic act does not authorize conviction for possessing small piece of wet cotton containing trace of heroin); Pelham v. State, 164 Tex.Cr.R. 226 , 298 S.W.2d 171, 173 (1957) (amount of marijuana must be capable of being applied to common usage; conclusion consistent with holding in Greer, supra; “harsh rule, indeed that would charge appellant with knowingly possessing that which it required a microscope to identify)”; Tomlin v. State, 170 Tex.Cr.R. 108 , 338 S.W.2d 735, 737 (1960) (evidence of visible residue on spoon, eye-dropper and needle, as well as particles of power on cellophane paper, aggregating 1700 micrograms equivalent to one capsule of 3% heroin not insufficient under Pelham and Greer, supra); Coleman v. State, 545 S.W.2d 831, 835 (Tex.Cr.App.1977) (declining to adopt "harsh rule” where unweighable trace of cocaine estimated from &ooo to ¾28000 of an ounce); Kent v. State, 562 S.W.2d 855 (Tex.Cr.App.1978) (3.2 milligrams of cocaine, about twice weight of heroin in Tomlin, supra, sufficient to sustain finding of possessing cocaine).

Later, under the Controlled Substances Act, the Court discerned that while a minimal amount of marihuana must be a usable quantity, the minimum quantity of any other controlled substance to sustain a conviction is not specified. Daniels v. State, 574 S.W.2d 127, 128 (Tex.Cr.App.1978); Johnson v. State, 658 S.W.2d 623, 627 (Tex.Cr.App.1993). And the Court continued to recognize and acknowledge that the amount must be large enough to be measured quantitatively in order to show that an accused knowingly possessed the substance as alleged. Ibid. Building on that basis the Court soon held, "When the quantity of a substance possessed is so small that it cannot by qualitatively measured, there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance.” Shults v. State, 575 S.W.2d 29 (Tex.Cr.App.1979).

This Court never resolved the question of "visibility” of "residue” qua "ash” versus "residue” qua "substance” in determining sufficient evidence for finding "knowing possession." See Johnson v. State, supra, at 627; cf. Tomlin v. *705 State, supra, 338 S.W.2d at 737 . But other courts came to regard the matter as at least germane. See note 2, post.

All emphasis is mine throughout unless otherwise noted.

. Harris County prosecutes so many cases presenting only minor variations on the scenario played out in the instant cause that, as here, both courts of appeals recite applicable law and evi-dentiary support meeting it almost by rote. See, e.g., Jenkins v. State, 870 S.W.2d 626 (Tex.App.—Houston [1st] 1994), no PDR, viz:

"In order to establish the unlawful possession of a controlled substance, the State is required to prove: (1) the accused exercised care, custody and control over the contraband, and (2) the accused knew the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 , Tex.Cr.App.1988). The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband. Jackson v. State, 807 S.W.2d 387, 389 (Houston [14th] Dist.1991, pet. ref’d).

The tube containing cocaine was found by [named detective] in appellant’s right, front, pants pocket. See [two cases involving similarly situated defendants].

Secondly, both the detectives and the chemist observed a white powdery residue inside the tube. See [four cases involving observations of, respectively, 'observed residue in cocaine pipe with the naked eye,’ ‘cocaine residue,' ‘residue inside crack pipe,' and 'cocaine residue visible to the naked eye’].

Finally, the police department chemist measured the cocaine at .33 milligrams. Similar amounts have been found sufficient to support a conviction. See [cases finding 0.2, 0.8 and 2 milligrams, respectively].”

Id., at 628. Without expressly stating it, the Jenkins court did apply the local "rule of thumb” evolved in that jurisdiction, viz: "If the controlled substance can be seen and measured, the amount is sufficient to establish the defendant knew it was a controlled substance.” See and compare: Dickerson v. State, 866 S.W.2d 696, 699-700 (Tex.App.—Houston [1st] 1993) no PDR; Ortega v. State, 861 S.W.2d 91, 95 (Tex.App.—Houston [14th] 1993), no PDR; Daniels v. State, 853 S.W.2d 749 (Tex.App.—Houston [1st] 1993) (testimony of chemist that quantity of cocaine in’ crack pipe "would be visible to the naked eye” rendered testimony of actual sighting unnecessary, “the evidence of visibility is enough to convict”), no PDR; Johnson v. State, 843 S.W.2d 238, 239-240 (Tex.App.—Houston [14th] 1992), PDR ref’d; Sims v. State, 833 S.W.2d 281, 283-284 (Tex.App.—Houston [14th] 1992), no PDR; Mayes v. State, 831 S.W.2d 5, 6 (Tex.App.—Houston [1st] 1992), no PDR; Campbell v. State, 822 S.W.2d 776 (Tex.App.—Houston [14th] 1992), (although lab analysis of content of matchbox showed 0.6 milligrams of cocaine, lack of any testimony that "cocaine residue” therein was "visible to the naked eye” required order of acquittal), PDR ref’d. Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.—Houston [1st] 1991), no PDR; Thomas v. State, 807 S.W.2d 786, 789 (Tex.App.—Houston [1st] 1991) ("If the controlled substance can be seen and measured, we conclude that the amount is sufficient to establish that the defendant knew it was a controlled substance,” citing Shults v. State, supra, note 1, ante) (judgment reversed on other grounds), PDR dismissed as improvidently granted, 840 S.W.2d 958 (Tex.Cr.App.1992); Manuel v. State, 782 S.W.2d 335 (Tex.App.—Houston [1st] 1989), PDR ref’d; Chavez v. State, 768 S.W.2d 366, 367-368 (Tex.App.—Houston [14th] 1989), PDR ref'd; Alejandro v. State, 725 S.W.2d 510, 514-515 (Tex.App.—Houston [1st] 1987), no PDR.

. The court of appeals noted: "There was also enough cocaine present to conduct four chemical tests. All indicated the presence of cocaine.” King, supra, at 720 . But the rule requires "quantitative measurement” for which by definition "qualitative tests” cannot serve as a substitute.