Opinion
No. 01-02-00386-CR
September 25, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 879108.
Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.
MEMORANDUM OPINION
A jury found appellant guilty of possession with intent to deliver between four and 200 grams of cocaine, and the trial court sentenced him to 25 years' confinement. We affirm.
Background
Officer Dale Crawford was conducting an undercover investigation of a drug-dealing suspect named John Mata. The officer observed appellant enter Mata's garage. Then Mata and appellant left in a van. Because an outstanding warrant existed for Mata's arrest, Officer Eric Nevle was stationed in a patrol car near Mata's house. As Officer Nevle attempted to pull Mata over, appellant exited the van and ran from the officer. Officer Nevle observed appellant carrying a white object in his hand. Officer Nevle chased appellant and successfully apprehended him. As Officer Nevle grabbed appellant, he saw appellant throw the white object to the ground. The officer recovered the white object, which was later found to contain 39 grams of cocaine. At the time of the arrest, the officer also found marihuana in appellant's pants pocket. In four points of error, appellant contends that (1) the evidence is legally and factually insufficient, (2) the trial court improperly admitted evidence about the marihuana possession, and (3) appellant received ineffective assistance of counsel.Sufficiency of the Evidence
In his first and second points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. In evaluating legal and factual sufficiency, we follow the usual standards of review. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) (factual sufficiency). To establish unlawful possession of a controlled substance, the State must show that (1) a defendant exercised care, custody, control, or management over the controlled substance, and (2) that he knew he possessed a controlled substance. Tex. Health Safety Code §§ 481.002(38), 481.115 (Vernon Supp. 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). In this case, Officer Nevle testified that he observed appellant carrying a white object, which was found to be cocaine, and watched as appellant threw it to the ground. Officer Nevle also testified that the cocaine could not have come from anyone else. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to show that appellant knowingly and intentionally possessed the cocaine. We overrule the first point of error. Finding the evidence legally sufficient, we proceed to appellant's second point of error, his factual sufficiency claim. In addition to the evidence that we considered under the legal sufficiency point of error, we now consider the rest of the evidence. Friends and family testified for appellant. These witnesses stated that they did not see appellant throw anything to the ground, nor did they see Officer Nevle pick anything up. Mata admitted that he possessed cocaine and had no knowledge about whether appellant possessed cocaine at any time. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury was free to disbelieve appellant's witnesses and believe the officers. See Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). Thus, we hold that the evidence is factually sufficient. We overrule the second point of error.Evidence of Marihuana Possession
In his third point of error, appellant contends that the trial court erred when it denied his motion to suppress evidence of his possession of marihuana at the time of the arrest. We interpret this point of error to refer to the admission at trial of evidence of his marihuana possession. Appellant was charged with possession with intent to deliver cocaine. He was not charged with possession of marihuana. He argues that any evidence about the marihuana was inadmissible because it was an extraneous drug offense, and therefore, was highly prejudicial. Generally, evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. Tex.R.Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id. The trial court verbally instructed the jury as follows:Members of the jury, any testimony regarding the defendant being in possession of any other controlled substance other than the controlled substance alleged in the indictment in this case, which is specifically cocaine, may not be considered by you as any evidence of guilt in this case. You can consider, if you first believe beyond a reasonable doubt the defendant is guilty of possessing another controlled substance, and then and only if you believe beyond a reasonable doubt he is guilty of possessing a controlled substance, you can only consider that evidence for the purpose of it aiding you, if it does aid you, in deciding whether or not in this case, with respect to this charge, it supports evidence of defendant's intent, knowledge, motive, mistake, lack of mistake, in the commission of this case, all right?Additionally, the trial court included a similar limiting instruction in the jury charge. These limiting instructions remedied any prejudicial effect that appellant's marihuana possession might have had on the jury. See Robinson v. State, 701 S.W.2d 895, 899 (Tex.Crim.App. 1985). We generally presume that the jury follows the trial court's instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). We hold that the trial court did not abuse its discretion in admitting the evidence. We overrule the third point of error.