Nos. 05-05-01442-CR, 05-05-01443-CR.
December 6, 2006. DO NOT PUBLISH.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 219-80056-05, 219-80055-05.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By Justice WRIGHT.
MEMORANDUM OPINION
Sergio Luis Contreras appeals his convictions for aggravated robbery and possession of cocaine. Appellant pleaded not guilty, and the trials were conducted in a single proceeding. A jury heard the aggravated robbery charge and found appellant guilty. Thereafter, the trial court found appellant guilty of possession of cocaine and assessed punishment at fourteen years' confinement for aggravated robbery and one year of confinement for possession of cocaine. In three issues, appellant contends (1) the trial court erred by failing to charge the jury regarding the lesser-included offense of theft, and (2) the evidence is legally and factually insufficient to support his conviction for possession of cocaine. We overrule appellant's issues and affirm the trial court's judgments. In his first issue, appellant claims the trial court erred by failing to instruct the jury on the lesser-included offense of theft in his aggravated robbery case. According to appellant, the jury should have been instructed on the lesser-included offense because there is some evidence from which a rational jury could conclude appellant did not threaten Kraig Nunn with imminent bodily injury or death. We disagree. To determine if a defendant is entitled to a lesser-included offense instruction, a two-prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Here, we focus on only the second element because theft is a lesser-included offense of robbery. See Jacob v. State, 892 S.W.2d 905, 908-09 (Tex.Crim.App. 1995); Bignall, 887 S.W.2d at 23. When considering the second element, some evidence directly germane to a lesser-included offense must exist for the factfinder to consider before an instruction on a lesser-included offense is warranted. Bignall, 887 S.W.2d at 24. It is not sufficient that the jury may disbelieve crucial evidence pertaining to the greater offense. Id. The charge instructed the jury to convict appellant if it found beyond a reasonable doubt that appellant "intentionally or knowingly, while in the course of committing theft of property, and with intent to obtain and maintain control of said property, threaten[ed] or place[ed] Kraig Nunn in fear of imminent bodily injury or death and the defendant did then and there use or exhibit a deadly weapon." The evidence presented by the prosecution indicated that appellant entered Nunn's house and took Nunn's ring, Rolex watch, and cellular telephone. Appellant was walking toward Nunn's daughter's room when Nunn yelled at appellant to stop. When Nunn asked appellant where his watch was, appellant ran past Nunn and out of the house. Nunn chased after appellant. As they ran down the alley, Nunn saw appellant "jostling in his pockets and . . . [then] he displayed a knife behind his back." Nunn interpreted this to mean "back off or worse things will happen." After seeing the knife, Nunn was concerned for his "life and safety," so he stopped chasing appellant. This evidence shows appellant committed theft, and in the course of his actions, threatened Nunn with imminent bodily injury. See Tex . Pen. Code Ann. § 29.01 (Vernon 2003) ("In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.). Appellant did not present any independent evidence regarding the offense. Rather, appellant argues the evidence fails to show he placed Nunn in imminent fear or that the knife was a deadly weapon. Because no affirmative evidence exists in the record showing appellant merely committed theft without threatening Nunn with bodily injury or that the knife was not a deadly weapon, we conclude the evidence failed to raise the possibility that appellant, if guilty at all, was guilty only of theft. See Bignall, 887 S.W.2d at 24. Thus, we conclude the trial court did not err by denying appellant's request for a lesser-included offense charge on theft. We overrule appellant's first issue. In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his conviction for possession of cocaine. Under these issues, appellant argues that the State failed to show he knowingly possessed cocaine because the State proved only a trace of cocaine, rather than a measurable amount of cocaine, was in his possession. We disagree. When reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex.Crim.App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the fact finder's verdict. Watson, 2006 WL 2956272, at *8. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 2006 WL 2956272, at *8. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony and may draw reasonable inferences and make reasonable deductions from the evidence. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). To prove unlawful possession of a controlled substance, the State must prove appellant: (1) exercised actual care, control and management over the contraband; and (2) had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). There is no minimum amount of cocaine necessary to prove unlawful possession and small quantities of cocaine will suffice if the amount is visible. Scott v. State, 825 S.W.2d 521, 523 (Tex.App.-Dallas 1992, pet. ref'd). In such a case, the issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband. See Victor v. State, 995 S.W.2d 216, 220 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Jackson v. State, 807 S.W.2d 387, 389 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). Even if the quantity is too minute to be measured, other evidence can prove that the defendant knew the substance in his possession was a controlled substance. Shults v. State, 575 S.W.2d 29, 30 (Tex.Crim.App. 1979); Scott, 825 S.W.2d at 523. Additional factors in minute-possession cases that may be used to find the requisite knowledge include (1) possession of narcotic paraphernalia, (2) the accessibility of the contraband, and (3) the location of the narcotic in an item of drug paraphernalia or an item closely associated with drug use. See Scott, 825 S.W.2d at 523; Victor, 995 S.W.2d 703; Jarrett v. State, 818 S.W.2d 847, 848 (Tex.App.-Houston [1st Dist.] 1991, no pet.). In this case, appellant was arrested shortly after Nunn and his wife called 911 and reported the robbery. Officer Richard Garayua testified that one of the items taken from appellant was a metal cylinder. The cylinder appeared to be part of an ink pen that had been modified for use as a crack pipe. After the pipe field-tested positive for cocaine, the police sent it for analysis. The chemistry report shows the pipe contained a trace amount of cocaine. Thus, the evidence shows the cocaine residue was found in an item of drug paraphernalia located on appellant's person and was easily accessible to him. And, a fact finder could reasonably infer the cocaine residue was visible because Officer Garayua chose to field test the metal cylinder. Thus, we conclude the evidence supports an inference of guilty knowledge. See Scott, 825 S.W.2d at 523. After reviewing the record under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction for possession of cocaine in an amount less than one gram. We overrule appellant's second and third issues. We affirm the trial court's judgments.