Opinion
No. 05-03-01528-CR.
Opinion Filed May 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 20,728. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Marcus Dewayne Moss of possession of a controlled substance, cocaine, in an amount of one gram or more but less than four grams. The jury assessed punishment at ten years imprisonment. In four points of error, Moss argues the evidence was legally insufficient to affirmatively link him to the contraband; that the trial court erred in not granting a mistrial when a witness testified regarding an extraneous offense and when the State made a closing argument that went outside the record; and that the trial court erred in allowing an undisclosed witness to testify. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first point of error, Moss argues the evidence is legally insufficient to support his conviction because the evidence does not affirmatively link him to the possession of the cocaine. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim. App. 1995) (legal sufficiency). To prove unlawful possession of a controlled substance, the State must establish the defendant (1) exercised care, control, and management over the substance, and that (2) he knew the substance he possessed was contraband See Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988). If a defendant does not have exclusive possession of the place where the contraband was found, the State must affirmatively link the defendant to the contraband See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Because each case is fact-specific, there is no set formula of facts to affirmatively link the defendant to the contraband See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). We consider several possible factors in determining whether a defendant is affirmatively linked to the contraband See Pettigrew v. State, 908 S.W.2d 563, 571 (Tex. App.-Fort Worth 1995, pet. ref'd) (listing factors). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband See Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown, 911 S.W.2d at 748. There is evidence in the record that around 10:00 p.m., state troopers stopped a car in Terrell for failure to signal a turn and for a defective tail-light. Officers approached both sides of the car. Moss was the passenger in a car. When Moss got out of the passenger side of the car at the officer's request, the officer saw a plastic bag, about the size of a golf ball, containing what he suspected was cocaine in the seat where Moss had been sitting. Moss was arrested. The substance in the bag tested positive for cocaine. Moss's main argument is that the State's evidence merely placed him in close proximity to the drugs. However, there is evidence that Moss was sitting on the bag and therefore in physical contact with it before he exited the car. Physical contact is more than close proximity or mere presence in the vicinity of the drugs. Moss also argues the evidence is insufficient because of the absence of several factors identified in other cases as affirmative links. We do not review the absence of evidence, i.e., evidence that might have but was not introduced at trial. See Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App. 1986) ("Either the evidence permits a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt or it does not. What is not in evidence is irrelevant to a determination of the sufficiency of the evidence."). The drugs were found on the same side of the vehicle where Moss was sitting. Moss had greater access to the drugs than the driver. The officer testified that Moss was in care, custody, and control of the drugs and that the drugs would have been visible to him when he got into the car. Having considered the evidence (including the above evidence) in the light most favorable to the verdict, we conclude the evidence tends to affirmatively link Moss to possession of the cocaine. See Brown, 911 S.W.2d at 748; Wallace, 932 S.W.2d at 524. Thus, a rational trier of fact could have found the essential element of possession beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Therefore, we further conclude the evidence is legally sufficient to support Moss's conviction. We overrule Moss's first point of error. In his second point of error, Moss argues the trial court erred in not granting a mistrial when the officer testified he remembered Moss and volunteered that he was "familiar with a lot of people from Terrell." Moss objected that the statement suggested the officer knew Moss from extraneous offenses committed in the area. Moss also objected that the answer was non-responsive. The trial court sustained the objection and instructed the jury to disregard the answer, but denied Moss's motion for mistrial. We will not disturb a trial court's ruling denying a motion for mistrial unless it amounts to an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim App. 1999). A trial court should only grant a mistrial in extreme cases when error is so prejudicial as to appear calculated to inflame the minds of the jury members. Id. Generally, a prompt instruction to disregard will cure a witness's inadvertent reference to an extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). The mere reference to knowing people from Terrell was not evidence of extraneous offenses committed by Moss. The statement was not clearly calculated to in flame the minds of the jury and was not of such a nature as to suggest the impossibility of withdrawing the impression produced. Gardner v. State, 730 S.W.2d 675, 696-97 (Tex.Crim.App. 1987). Thus, the trial court's prompt instruction to disregard cured any improper impression created by the statement. We conclude the trial court did not abuse its discretion in denying the motion for a mistrial. We overrule Moss's second point of error. In his third point of error, Moss argues the trial court erred when it allowed an undisclosed State's witness to testify during the punishment phase. The State called a fingerprint expert to testify that Moss's fingerprints taken after the guilty verdict matched those on a prior judgment revoking community supervision. The trial court overruled Moss's objection to the failure to disclose the witness. The decision to allow a witness who was not on the State's witness list to testify is a matter within the court's discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App. 1989). Among the factors a reviewing court considers in determining whether there has been an abuse of discretion are: (1) a showing of bad faith on the part of the prosecutor in failing to disclose the witness's name before trial; and (2) whether the defendant could have reasonably anticipated that the witness would testify, although his or her name was not included on the witness list. See Nobles v. State, 843 S.W.2d 503, 514-15 (Tex.Crim.App. 1992); Stoker, 788 S.W.2d at 15 (citing Hightower v. State, 629 S.W.2d 920, 925 (Tex.Crim.App. [Panel Op.] 1981)). Moss does not argue that the State acted in bad faith in failing to disclose the witness. The State argued that it had disclosed Moss's criminal history to his attorney before trial and Moss could not be surprised that the State would seek to offer the prior conviction during the punishment phase. Moss does not argue that he could not have anticipated this witness. Moss obviously knew of the prior conviction, and knew that the state had that information as well. He reasonably could have anticipated the State would offer evidence as to the prior conviction during the punishment phase. We conclude the trial court did not abuse its discretion in allowing the witness to testify. We overrule Moss's third point of error. In his fourth point of error, Moss complains that the State argued outside the record in closing argument. In response to Moss's argument about the lack of evidence from the driver, the State argued that Moss's attorney could subpoena anyone and that he "knows who the driver of that car is because his client was with him." Moss objected that the argument was outside the record and the trial court overruled the objection. Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Dooley v. State, 65 S.W.3d 840, 843 (Tex. App-Dallas 2002, pet. ref'd). It was undisputed that Moss was a passenger in the car with the driver at the time of the stop. A reasonable inference would be that Moss knew the driver and had told his attorney who the driver was. Moreover, the argument was in response to Moss's argument about whether the jury would like to know what the driver had to say. The State is entitled to comment on an accused's failure to produce testimony from sources other than himself when it is relevant to a disputed issue. Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995); Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Crim.App. [Panel Op.] 1978). Moreover, a prosecutor's comment about the subpoena power of a defendant is proper if it refers to the defendant's failure to produce evidence from other sources. Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App. 1987). To the extent the argument was improper, we conclude the error in allowing the argument did not affect Moss's substantial rights. See Tex.R.App.P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). We overrule Moss's fourth point of error. We affirm the trial court's judgment.