Opinion
No. 14-03-00570-CR
Opinion filed June 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 923,883. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
OPINION
Appellant, Vincent Robinson, was charged by indictment with providing a controlled substance to an inmate of a correctional facility. See TEX. PEN. CODE ANN. § 38.11(a) (Vernon Supp. 2004). The indictment contained two enhancement paragraphs alleging prior convictions for burglary of a habitation and possession of a controlled substance. Upon appellant's plea of not guilty, trial was to a jury that subsequently found appellant guilty as charged. Thereafter, appellant entered a plea of "true" to the enhancement paragraphs, and the trial court assessed appellant's punishment at confinement in the state penitentiary for a term of twenty-five years. On appeal, appellant contends (1) the evidence was legally and factually insufficient to support his conviction and (2) the state's attorney engaged in improper jury argument. We affirm. Appellant was, at the time of this offense, an inmate in the Harris County Jail. As a trustee, appellant was assigned to clean the floors. On September 10, 2002, Deputy Stephen Arjelger, observed appellant walk down a corridor. Because Deputy Arjelger was behind appellant, appellant was not aware of the deputy's presence. Deputy Arjelger saw appellant enter the vestibule to cell block C (a place appellant was not authorized to be without a deputy). He then watched as appellant reached through the cell bars and place an item inside the shirt pocket of another inmate, Brett Rox. Deputy Arjelger immediately approached the cell and asked Rox what was in his pocket. Rox became defensive and nervous; he responded, "There is nothing in there. It's Ibuprofen. I have a headache." Deputy Arjelger confiscated two white pills found in Rox's pocket. The pills were labeled "3/93" on one side and "150" on the other side. Deputy Arjelger took the pills to medical professionals at the jail who identified the pills as Tylenol III with codeine. Neither appellant nor Rox had been prescribed such medication. The contraband was subsequently analyzed by Charles Gould, III, a chemist of the Harris County Medical Examiner's Office. Searching the Drug Enforcement Agency's database, Gould confirmed from the pills markings that they contained codeine. He also performed laboratory tests that yielded positive results for codeine. Codeine, of course, is a controlled substance requiring a prescription. TEX. HEALTH SAFETY CODE ANN. § 481.032 (Vernon Supp. 2004). In his first point of error, appellant challenges the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict 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); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 2004). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.3d 238, 246 (Tex.Crim.App. 1993). A person commits the charged offense by providing a controlled substance to an inmate of a correctional facility without a prescription. Tex. Pen. Code Ann. § 38.11(a) (Vernon Supp. 2004). While appellant agrees there might be sufficient evidence to show appellant's knowledge that he was passing some sort of contraband, he contends the State failed to prove that he knew the pills contained codeine as alleged in the indictment. Specifically, the indictment states that appellant "intentionally and knowingly provide[d] Codeine to Brett Rox, an inmate of a correctional facility." Appellant contends the evidence shows a complete absence of markings on the pills that would alert a layman to the fact they contained cocaine. Proof of scienter is always subjective. Grant v. State, 989 S.W.2d 428, 433 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Without an admission of guilt from the accused, knowledge must be inferred from the acts, words, or conduct of the accused. See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982); Grant, 989 S.W.2d at 433. Similarly, an accused's knowledge of the presence of contraband can be inferred by observing the accused's actions. See Ethridge v. State, 795 S.W.2d 281, 285 (Tex. App.-Houston [14th Dist.] 1990), pet. dism'd, 812 S.W.2d 600 (Tex.Crim.App. 1990) (explaining that attempts to conceal or destroy contraband is sufficient evidence of "guilty knowledge"). Appellant was observed unaccompanied in cell block C in violation of jail rules. Moreover, he partially concealed the pills in his hand when dropping them in Rox's shirt pocket. Viewing the evidence in the light most favorable to the verdict, we believe a rational jury was entitled to conclude appellant knew he was passing a controlled substance to Rox. Accordingly, the evidence is legally sufficient, and the first point of error is overruled. In his second point of error, appellant challenges the factual sufficiency of the evidence. When reviewing claims of factual insufficiency, it is our duty to examine the jury's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133-134 (Tex.Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to render the verdict clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim.App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the "manifestly unjust" standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the "against the great weight and preponderance" standard applies. Id. Under the Texas Court of Criminal Appeals' modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine "whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Appellant presents several arguments in shaping his factual insufficiency argument. First, appellant challenges Deputy Arjelger's credibility. Specifically, appellant questions Arjelger's ability to see a transfer of contraband from appellant's hand to Rox's pocket because Arjelger was standing behind appellant. Second, appellant asserts there is insufficient evidence to show that he put the pills in Rox's pocket because the incident occurred on a floor where prescription drugs are routinely dispensed to inmates. Third, appellant complains that it is unfair to characterize the pills as Tylenol III when the physical description of the pills in the record does not match the description given in the Physician's Desk Reference. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the jury may believe or disbelieve all or part of any witness's testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). Appellant attempts to attack the credibility of Deputy Arjelger, but it is not the province of this court to make credibility determinations from the cold record. Deputy Arjelger testified that he observed appellant put something into Rox's pocket. The only items found in a search of Rox's pocket were the Tylenol III tablets, and subsequent analysis demonstrated these pills contained codeine. Moreover, "knowledge" may be demonstrated through direct or circumstantial evidence. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The jury apparently believed the testimony of the state's witnesses, and we do not find the proof of guilt so obviously weak as to undermine our confidence in the jury's verdict. Neither do we find the proof of guilt is greatly outweighed by contrary proof. Accordingly, appellant's second point of error is overruled. In his final point of error, appellant asserts the prosecution engaged in improper jury argument. During his closing argument at the guilt/innocence phase of the trial, the State's attorney argued:
Don't leave your common sense at the door. It is up to you guys to evaluate this conduct and say by your vote of guilty what he was doing. You don't have to be a chemist. He was putting a narcotic in the pockets of an inmate in the jail. And by that, he was putting a deputy's life on the line. I'm asking you — it's your county. Do what is right. Tell the deputies, other jailers that you value what they do for us in keeping us safe and you value their lives. Please return a verdict of guilty.Although appellant made no objection to this argument at trial, he contends on appeal that the argument was so prejudicial it warrants reversal. However, appellant was required to object and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Without a proper objection, any error is waived. Id. Accordingly, appellant's final point of error is overruled, and the judgment of the trial court is affirmed.