King v. State

MALONEY, Judge,

dissenting.

Believing it to be in contravention of the intended statutory proscription to sustain a conviction for knowing possession of a controlled substance where its quantity is so small that it is impossible to measure even with the most sophisticated of scientific devices and there is no evidence that the substance could be seen with the naked eye, I dissent.

Appellant was convicted for the knowing possession of less than twenty-eight grams of cocaine found inside a crack pipe which was removed from his front pocket. There is an absence of evidence that any cocaine was visible in the pipe. The repeated testimony as to the contents of the pipe is that “residue” was visible. Yet, the only explanation of “residue” given by any witness is that it is a combination of “like spit and stuff like that.” The State’s chemist was asked specifically whether cocaine was visible inside the pipe:

A. There was a visible residue in the pipe to the naked eye. That’s all I can say.

He gave no explanation as to what a “visible residue” was or whether cocaine was a visibly identifiable element of the “visible residue.” He further testified that the quantity of cocaine within the residue was so small that it was impossible to- measure. 1

*707 The scenario presented in the instant case is not new. For nearly forty years this Court has addressed possession cases in which the amount of the substance was too small to be seen or measured. See Pelham v. State, 298 S.W.2d 171 (Tex.Crim.App.1957); Greer v. State, 163 Tex.Crim. 377 , 292 S.W.2d 122 (1956). In Pelham , we held that the amount of substance possessed must be enough for use, or at least enough to see with the naked eye. There, with the aid of a microscope, the chemist was able to determine that scrapings taken from the defendant’s pants pocket contained particles of marijuana; however, he was unable to express any opinion as to the amount or weight of marijuana present. Pelham, 298 S.W.2d at 172 . This Court refused to uphold the conviction for unlawful possession, holding that the amount possessed must be “sufficient to be applied to the use commonly made thereof.” Id. at 173 . 2 We further stated that

Note is taken of the fact that it was only by the use of a microscope that the chemist was able to determine the presence of marijuana in the dustings which were scraped from the lining of appellant’s pocket. It would he a harsh rule indeed, that would charge appellant with knowingly possessing that which it required a microscope to identify.

Id. (emphasis added). Our holding in Pel-ham was consistent with our previous opinion in Greer , where this Court refused to uphold a conviction for unlawful possession of heroin on the basis of “a small piece of wet cotton containing a trace of a narcotic such as may have been wiped from a needle following an injection.” Greer, 292 S.W.2d at 122 . In neither Pelham nor Greer was the controlled substance visible to the naked eye. After Pelham and Greer this Court has consistently held that knowing possession was shown where the substance could be seen and measured, but not where it could neither be seen nor measured. Compare Coleman v. State, 545 S.W.2d 831 (Tex.Crim.App.1977) (declining to uphold conviction for knowing possession where substance could only be identified with microscope, citing Pelham) with Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983) (upholding conviction for possession of methamphetamine where substance could be “quantitatively measured” and “could be seen without the aid of a microscope”) and Tomlin v. State, 170 Tex.Crim. 108 , 338 S.W.2d 735 (1960) (upholding conviction under circumstances where heroin collected measured 1700 micrograms and appeared as “a white substance” or “white powder”).

We have recognized, however, that a conviction for knowing possession of a minute amount of a controlled substance may be sustained where the defendant admitted he knew that he possessed a controlled substance. In Cantu v. State, 546 S.W.2d 621, 622 (Tex.Crim.App.1977), this Court held the evidence sufficient to show knowing possession of a “trace” of heroin where the defendant voluntarily pled guilty to knowing possession, stipulated to the evidence and admitted the allegations in the indictment were *708 true and correct. Id. Similar reasoning was applied in the sale and delivery context. In Reyes v. State, 480 S.W.2d 373, 374-75 (Tex.Crim.App.1972), we held that where the defendant represented that he was selling narcotics and the substance he was selling was subsequently found to contain narcotics, the evidence was sufficient to show knowledge for purposes of an unlawful sale conviction.

In my view we erroneously relied on Cantu and Reyes in Daniels v. State, 574 S.W.2d 127 (Tex.Crim.App.1978), in holding for the first time that other evidence might be used to prove knowledge for purposes of possession where the quantity of the substance was too small to be measured. In Daniels , the substance at issue was identified by chemical analysis as cocaine; however, it was “neither a quantity that could be quantitatively measured nor a quantity for which a pharmacological effect could be obtained.” Id. at 128 . We stated that

when the quantity of a substance possessed is so small that it cannot be quantitatively 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.

Id. We reversed and remanded for a new trial since the State had relied upon circumstantial evidence to show knowing possession, 3 and under the circumstantial evidence law then but not now in existence the. jury should have been but had not been instructed on the law pertaining to circumstantial evidence. 4

This rule announced in Daniels , however, was cited in Shults v. State, 575 S.W.2d 29 (Tex.Crim.App.1979), relied upon by the majority in the instant case. In Shults , a balloon was found in the defendant’s mouth during a search conducted while she was visiting a friend in the county jail. Chemical analysis revealed that the balloon contained “a small amount of marijuana and a trace of heroin.” Id. at 30 . The defendant was charged with possession of heroin and stipulated that a chemist if called to testify would testify that he determined that the substance found inside the balloon was heroin, and that it was an amount too small to be measured. While the defendant admitted to knowing possession of the marijuana, she claimed she had not known the balloon also contained heroin. Citing the rule announced in Daniels that when the controlled substance possessed is too small to be quantitatively measured, there must be other evidence to prove knowing possession, we concluded that although the State had proven that the defendant possessed the heroin, it had not proven that she knew she possessed it. Id.

Given that the cases relied upon by the Court in Daniels did not' support the rule announced therein, and given that the rule has not been utilized by this Court to sustain a conviction for knowing possession in the absence of an affirmative statement or confession by the defendant indicating knowledge, I believe we should reexamine the soundness of the Daniels rule before applying it for the first time to affirm a conviction.

The rules set forth in Pelham and Greer , as modified by Cantu , make sense and are solid law. While no minimum amount need be possessed under the Controlled Substances Act, the State must prove that the defendant “knowingly or intentionally” possessed the substance. 5 In view of the evidence that the amount of the substance was too minute to be measured, and absent evidence that cocaine was visible inside the pipe, the rules set forth in Greer and Pelham apply. I would hold there is no evidence to support appellant’s conviction for knowing *709 possession of cocaine weighing less than 28 grams.

. The testimony at trial revealed that the amount of cocaine was too small to measure even with the sophisticated testing mechanisms used to determine the chemical content of the substance:

[Defense attorney]. Does [the ultraviolet spectrophotometry test] give you the weight or the contents, the amount of contents of maybe coke that was present?

*707 [Chemist]. In many cases we can determine the weight from the numbers that we get from the ultraviolet spectrophotometer.

Q. Do you remember the numbers that were produced when you ran that test?

A. Yes.

Q. Could you tell the jury.

A. Sure. These are actually absorbant numbers. I’m sorry. Let me correct myself. In this case I was not able to determine the weight. It was such a small amount. So in this case the actual absorbants aren’t actually recorded.

Q. What do you mean by you could not determine the weight?

A. In cases that we encounter sometimes there is such a small amount or the sample contains adulterants that prevents us from using that test to determine the weight.

Q. And you're telling the juiy that you understand the ultraviolet spectrophotometry test, there is no possible numbering grams, milligrams, micrograms that you could tell us that was contained in that pipe?

A. No, it was not possible to determine the weight.

The chemist also testified that it was not possible to determine weight from the two other types of tests that were conducted.

. We subsequently did away with the “usable amount” standard. Cantu v. State, 546 S.W.2d 621, 622 (Tex.Crim.App.1977) ("usable amount” need not be shown to sustain a conviction for possession under Controlled Substances Act).

. The circumstantial evidence relied upon by the State in an effort to show knowing possession included "other controlled substances, narcotic paraphernalia, and methapyriline, which is an agent sometimes used to 'cut' cocaine” found on the premises. Id. at 129.

. Daniels was decided prior to the abolition of the circumstantial evidence charge in Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1981). Considering the fact that the law of circumstantial evidence with its protections is no longer viable, the rule announced in Daniels is open to question on that score alone.

.Without deciding the merits of such, it seems to me that the State would have been more prudent to have charged appellant with possession of drug paraphernalia. Tex Health & Safety Code Ann. § 481.125 (Vernon 1992).