*1 summary judgment misrepresentations failed to meet his bur which form basis of rule, negating discovery we Therefore, den of DTPA he claim. did Gibson’s first sustain Gibson’s five issues. not establish as matter of law that these representations do not fall within ex- DTPA Claim 17.49(c). provided in ceptions section Ellis Because also moved for Ellis failed his summary therefore to sustain summary judgment on Gibson’s DTPA judgment burden as on this issue well. ground claim on the that alternative Gib Accordingly, we also resolve Gibson’s sixth consumer, son was not a we must also in his favor. issue challenging Gibson’s sixth address issue summary judgment We reverse Bros., Inc. v. ground. Malooly that this cause for further proceedings. remand 119, (Tex.1970); Napier, Tilton, 77, Smith 1999,
App. pet.). Again, no as — Dallas movant, negate Ellis had the as burden of law that a consum
a matter Gibson was
er within the the DTPA. Ellis meaning of
contends Gibson was a consumer be the DTPA was amended in 1995 to
cause exempt “damages claims based on HYETT, Appellant, Allen Lee service, rendering professional advice, providing essence of which is the opinion, professional or judgment, similar Texas, Appellee. The STATE of
skill.” See Tex. Bus. & Com.Code Ann. 17.49(c)(Vernon § Supp.2001).3 No. 14-00-00561-CR. However, the balance of the amended statute, ex- establishing general after Texas, Court of Appeals emption, provides exceptions: four Dist.). (14th Houston exemption apply to:
This does not 18, Oct. 2001. (1) of a express misrepresentation an that material fact cannot be character- advice, judgment, opinion; as or
ized
(2) a failure to information in disclose .46(b)(23);
violation of Section 17
(3) an or course of unconscionable action that cannot characterized as
action be
advice, judgment, opinion; or or warranty express of an breach advice, judg- as
cannot characterized
ment, opinion.
Id. evidence, El- summary judgment
In his alleged not address
lis does May 74th applies tember 1996. Act of 3. The amendment to all claims R.S., 20(a), (b), Septem- Leg., § ch. 1995 Tex. prior to its date of accrued effective Sep- Laws 1995 and were filed on or after Gen. ber *3 glass pipe see about one inch of a “teeter- ing” Through the slats of the vent. officer, police Deputy as a Mor- experience testified, recognized as an gan he smoking item used for crack cocaine. car Deputy Morgan appellant’s searched and retrieved He could see pipe. spots pipe. By burnt on the a field use of test, Deputy Morgan positively identified residue as cocaine. He placed appellant then under arrest. The *4 Pritchard, Houston, Dixie Lee appel- transported County for was to the Harris lant. testing. Medical Examiner’s office for Houston,
Dan McCrory, appellee. for Howelton, Richele a forensic chemist at County the Harris Medical Examiner’s of- YATES, Panel consists of Justices laboratory, fice the controlled substance EDELMAN, and WITTIG.* pipe. tested the Howelton testified that burnt, beige, powdery the residue on the OPINION crack cocaine an amount of YATES, Justice. milligrams, less than ten which is less than gram. Appellant one testify did not at the juryA convicted appellant, Lee Allen guilt/innocence punishment phase of his Hyett, of a controlled sub- jury trial. The appellant pos- convicted jury stance. The punishment assessed at punish- session of cocaine and assessed confinement, years’ five enhanced two years’ ment at five ap- confinement. This prior felony drug convictions. In two peal followed. error, (1) points of appellant challenges the legal and factual sufficiency of the evi- Legal (2) Sufficiency and Factual
dence and
the trial court’s refusal to
grant a mistrial
improper
comments on
error,
In
point
appellant
his first
appellant’s post-arrest silence. We affirm.
legally
claims the evidence is
factually
support
insufficient to
his conviction for
Background
History
and Procedural
possession of cocaine.
apply
We
different
5, 1999,
On October
Deputy Kevin Mor-
reviewing
standards when
the evidence for
gan, with the
County
Harris
Sheriffs De-
legal
sufficiency.
and factual
partment, made a
stop
traffic
at about
p.m.
11:30
Appellant
Tomball.
reviewing legal sufficiency,
When
alone in
car
Deputy
the
and as
Morgan we view the evidence in the
most
light
approached the car he
appellant
saw
“mov-
favorable to the verdict and determine
ing
Using
flashlight
around.”
to illu- whether a rational
fact
trier of
could have
car,
minate the inside of
Deputy
beyond
the
Mor-
found the elements of the
offense
gan
appellant “jerk”
saw
away
Virginia,
his hand
v.
reasonable doubt.
Jackson
307, 318-19,
2781,
from an air conditioning
Deputy
vent.
443 U.S.
99 S.Ct.
2788-
(1979);
Morgan
appellant’s
testified that once
830 2000). reviewing reasonably If a court the knew determines the infer defendant evidence insufficient under Jackson existence and exercised contraband’s con standard, judgment it must render a trol it. over See McGoldrick acquittal if the because evidence insuffi Jackson,
cient under the case should never thrust of appellant’s complaint is that jury. to have been submitted link affirmatively did not him to State Jackson, 443 U.S. 99 S.Ct. disagree. the cocaine. We legal sufficiency L.Ed.2d 560. In a chal do lenge, re-weigh we the evidence. Circumstantial evidence relevant
King v. link” an “affirmative between establish Crim.App.2000). appellant and contraband include: (1) appellant’s presence when contra reviewing sufficiency, factual (2) discovered; band was whether con “in the light we do not view the evidence (3) view; plain appellant’s was in traband prosecution.” most favorable to Cain proximity accessibility of the nar (Tex.Crim.App. cotic; appellant whether the was under 1997). Rather ask we whether neutral arrested; the influence of narcotics when evidence, review of all the both for and *5 (5) appellant possessed whether other con against the finding, proof the demonstrates arrested; (6) appel traband when whether guilt obviously of is either so weak as to jury’s incriminating in made undermine confidence the deter lant statements when or, (7) mination, arrested; if although adequate appellant taken attempted whether alone, outweighed (8) greatly by contrary flee; appellant to whether made furtive State, 1, proof. 11 (9) Johnson v. 23 S.W.3d gestures; there was an odor of whether (Tex.Crim.App.2000). We set a will aside (10) contraband; the whether other con only insufficiency if it is verdict factual drug paraphernalia pres or traband contrary overwhelming so to of weight the (11) ent; the place whether where the clearly the to be wrong evidence as (12) enclosed; were found was drugs State, 103, unjust. Wesbrook v. the appellant right owned had whether or 112 (Tex.Crim.App.2000). drugs to the where the were possess place State, 284, found. Chavez v. A if person an offense commits (Tex.App. [1st Dist.] 288-89 intentionally or person knowingly pos — Houston ref’d). 1989, Notwithstanding pre the pet. gram than cocaine. sesses less one of See links, laundry possible list of there ceding Safety Tex. Health & Code Ann. a is no set formula of facts that necessitate (Vernon 481.115(b) § Supp.2001). When to finding of an affirmative link sufficient charged pos an accused is with unlawful posses knowing of support an inference cocaine, the must prove: session of State State, 873 732 sion. Porter v. S.W.2d (1) care, actual the defendant exercised ref’d). 1994, pet. Rath (Tex.App control, custody, over the management . —Dallas er, are aby affirmative links established contraband and the accused knew the the See Sosa v. totality of circumstances. object possessed he was contraband. See (Tex. (Tex.App. 483-84 Linton ref’d) (find 1993, pet. [1st Dist.] —Houston App. pet. Dist.] [14th — Houston ing totality the was of refd). the circumstances possession While the element of jury reasonably evidence, such a character proved may circumstantial was aware of could conclude the defendant affirmatively link the such evidence must offense, and exercised control over to that one the contraband defendant so it). case, this no less than a seven offense of controlled substance.”). suggested links have been met. Next, appellant disputes his control over Appellant occupant was the sole by claiming the cocaine he is not the owner the car where the pipe was found. The However, determining of the car. is burnt, pipe test results of that indicate the control of the car at the sue is time the beige, powdery residue was crack cocaine. found, ownership. contraband is Deputy Morgan crack testified cocaine is Villegas v. an odorless substance. He further testi 'd). App. pet. ref [1st Dist.] - Houston eyes fied appellant’s “glassy,” sign were mother, owner, Appellant’s testified drug Appellant disputes use. this alle she in car prior fifteen minutes to gation through two witnesses claim who an sending appellant on errand in it. She “glassy” eye his condition resulted from seat, testified she sat in the middle front However, crying day. earlier in the such vent, adjusted the air conditioning and at testimony merely Deputy contradicts Mor no time anything glass saw like a in tube gan’s testimony and ais conflict for the Indeed, the vent or in the car. both of jury Wyatt resolve. See appellant’s they witnesses testified did not 30 (Tex.Crim.App.2000). in nearly see the fifteen vent Appellant further contends the evidence appellant minutes before car drove is legally insufficient because the cocaine alone. was not eye visible the naked and the Deputy Morgan testified that he saw the residue is not considered measurable vent, “teetering” the slats of the Although amount. Morgan Officer testi opinion, way such that it would not *6 fied he did not see a “white residue” of have remained there if the car moving. was pipe, cocaine on the he did see “blackened pipe plain He also testified the was in view Howelton, burnt spots.” chemist, the tes appellant “jerked” when away his hand “beige powdery tified the residue” in the In from the vent. connection with the Further, eye.” was “visible with the links, appel other established the fact that specifically she positive stated a test the occupant vehicle, lant was the in sole the residue “indicated that it was cocaine the not present was fifteen minutes the amount of less than ten milligrams.”1 prior appellant’s vehicle, to use of the the event, In the Court Ap of Criminal in plain contraband was view and it peals has held requirement there is no located in appellant’s proximity close is a controlled substance must be and visible prove sufficient to the first element of support
measurable to pos conviction for Linton, 619; control. See 15 S.W.3d at State, session of contraband. King See v. Grant v. 989 S.W.2d 702-04 (Tex.Crim.App. App. pet.). [14th no Dist.] - Houston 1995); Joseph see also (Tex.Crim.App.1995) (finding it Appellant claims the evidence would if “requir[e] be error we were to the support is insufficient to the second ele controlled substance to be knowingly possessed visible to the ment that he cocaine. eye naked support accused, order to appellant’s Without an admission the Visibility conviction. knowledge may not an element of from cir- be inferred the facts, light respectfully In of the above we "unmeasurable” and "invisible” amount of disagreement note our the with dissent's char- cocaine. constituting acterization of the evidence as an Linton, During the examination of at 618. lence.2 State’s cumstances. Morgan, following exchange Deputy sufficient if the legally The evidence is place: of all the combined and cumulative effect took incriminating point appel- circumstances to Did the defendant ever Prosecutor: See Russell v. guilt. lant’s that that’s deny pipe? at the scene his Object [Defense Counsel]: Mr. Jacobs Here, testify, did not appellant because that, jury to to Your Honor. Ask the factual affirmative links that establish con- disregard ques- to be instructed appellant’s trol also used to show tion. knowledge. viewing After the evidence jury, disre- Members of the Court: light prosecution, most favorable to the statement, gard question the last and trier of fact believe that a rational we answer of the officer. could have found the essential elements say: Hey Did he ever that’s Prosecutor: possession the offense of cocaine. my pipe. I him into object going also claims the evi Mr.
Appellant Jacobs: to— factually support trying insufficient to that area. He’s dence conviction for of cocaine. The Court: Sustained. review, conducting sufficiency a factual mistrial, then moved for a Trial counsel jurisdiction to only exercise our fact we denied, again the trial court and which unjust clearly wrong and result. prevent jury disregard ques- instructed the Wesbrook, 29 at 112. We do tion. greatly in the record that not find evidence trial court When the sustains the tri outweighs supporting the evidence objection jury to dis an and instructs judgment. For the reasons dis al court’s regard, appellant’s denies motion for but above, was not jury’s cussed decision mistrial, trial question is whether the contrary weight to the of the evidence so the mistrial. denying court erred unjust. clearly wrong as to be 469, 474 Sauceda presented conclude that the State We ref’d). “Only pet. (Tex.App. — Dallas evidence to legally factually sufficient *7 objectionable apparent it is that an when appellant that jury to show emotionally trial inflammato event at is so first possession Appellant’s of cocaine. likely not that curative instructions are ry overruled. point of error is being unfairly preju prevent jury to may a motion against diced the defendant Silence Post-Arrest State, granted.” Bauder v. for mistrial be 696, error, (Tex.Crim.App.1996); 698 ap 921 S.W.2d point In second of State, 382, 14 394 in de see also Ford v. S.W.3d the trial court erred pellant claims 2000, no Dist.] (Tex.App. [14th mistrial on the nying his motion for based — Houston asking improper question, The of an pet.). si- post-arrest comment on his State’s 1999, pet. (Tex.App. questions regarding [14th Dist] Appellant cites two also — Houston Further, ref’d). police to contact the after of a wit his relatives' failure cross-examination However, court has appellant's arrest. this in which "under circumstances ness' silence questions previously type these of direct held may expected speak, to be would be [s]he chal solely witnesses and which ed to defense Montoya v. impeach the witness.” used to credibility consti lenge do not the witnesses State, (Tex.Crim.App. 27 post-arrest defendant’s tute a comment on the 1987). State, Abney 276 v. 1 silence.
833 itself, invisible, by unweighable call an will seldom for mistrial. that substance (Tex. State, probable grams, Moore v. with a mass of .OOOOx i.e. Further, single an of a Crim.App.1994). instruction hundredths or even thousandths to an The disregard improper ap grain, knowingly possessed. comment on can be pellant’s post-arrest laboratory man generally silence is of the law can see what no sufficient to cure Dinkins can see. harm. (Tex.Crim. corpus upon The of law relied case, App.1995). this the witness never nose, like majority opinion, Pinoechio’s question, answered the the trial court sus law, is, it grows. That such as confounds appellant’s objection tained in and twice confuses, quantify. refuses to but jury disregard. structed the To expands, justly That law ever but is scruti- that the question objectionable, extent fronts, many quantum nized on of which
we find that it did not rise to the level already Today, I have noted.1 let us ex- necessary granting to warrant of a proof necessary amine the measure of un- Appellant’s point mistrial. second error of der knowing possession Texas law to show is overruled. of a controlled substance. judgment The of the trial court is af- legally A. The are facts insufficient firmed. prove knowing possession beyond reasonable doubt even under current WITTIG, J., dissenting. Texas law. WITTIG, Justice, DON Senior majority correctly *8 tube with burn marks on it into a five important. e.g., is Gilbert v.
year
tour of the Texas
Di-
penitentiary.
(Tex.App.—
not,
’d).
singenuous
or
we Texans would hold Houston
pet.
[1st Dist.]
ref
Daubert,
1. For
process
implicat
failure under
see Victor v.
due
unusual. Are
concerns
(Tex.App
sample
ed where the
is so small that it cannot
. —Hous
1999) (Wittig dissenting).
reliably
weighed?
[14th Dist.]
ton
even be
tested or
Is a
years
prison
chemically
by
Consider as well whether five
in
substance that has been
altered
invisible,
possession
something
say posses
for
that is
fire still the same substance? To
unweighable,
pipe,
and unusable constitutes cruel
sion of a crack
even one that has been
used,
punishment?
knowing possession
drugs
simply
and unusual
Under similar but
is
is
circumstances,
not identical
the court in Can
false. Has the law come to fictitious convic
tions,
years
really
tu held that two
was not cruel and
or "is 'is'
is?”
knowing
no
assurance of
chart identifies and sum- There is
better
The attached
finding
drugs
than
visible
on
possession
prior affirmative links decisions.2
marizes
chart,
person.4
the defendant’s
that are
In the
those cases
most
My
to the case at
are shaded.
similar
bar
majority opinion
Villegas
cites
for
The
of the relevant case law
review
some
that, presum-
proposition
the additional
upon
have relied
almost
shows that courts
from the
ably, knowing possession derives
by
anything
finding
to affirm a conviction
car at the
defendant’s control over the
link.
an affirmative
Again, the
drugs
were found.
time
Villegas
on
is con-
problem with reliance
conclud
Appeals
The
of Criminal
Court
automobile,
of an
wheth-
textual. Control
analysis is
ed that the “affirmative links”
owner, has of-
occupant,
er as
driver or
rule,
actually
legal
having
no meth
by
used
our courts as an
tentimes been
de
odology,
is instead shorthand for
but
it
affirmative link. Yet
has never been
termining
knowing possession
whether
is
drugs
used where the
were invisible
proven. Brown v.
Villegas,
example,
immeasurable.
for
majority
The
caught
pounds
with 90
the defendant was
of the
opinion today
good example
is
pot.
The
pounds
of cocaine and
appellate
in which
courts recite
manner
(1)
have
a sin-
typical car scenarios
been:
links,
approved
from a list of
affirmative
car he “borrowed”
gle person driving a
analy
links
thereby giving the affirmative
knowledge
big
stash of
claiming no
Links relied
legal-rule
sis
status.3
defacto
compartment,
in
who is
drugs
the secret
decisions,
upon
prior
taken out of con
affirmatively linked as the “sole oc-
then
text,
may may
probative
not be
“driver”; or
two or more
cupant” or
majori
example, the
given case.
Here
car, the
drug-loaded
in a
non-car-
people
emanating pre
ty opinion relies on links
of which are
drivers and non-car-owners
dominantly from Chavez.
835
Reyes,
urable,
trying to
caught
on the defendant
the defendant was
and
found
i.e. he
that
the
Accordingly,
drugs,
represented
sell
himself.
the result
reached
drugs.
at issue was
majority opinion
in
is
more im-
substance
the
one
(Tex.Crim.App.1972).
374-75
proper
existing
extension of
law.6
Reyes
in
and
pertinent
fact is that
both
upon
King
B. The cases relied
in
v.
Cantu the defendant
affirmatively
stated
support
do not
the rule of law
State
possessed drugs,
that he knew he
even
pronounced.
though
sample
the
turned out to be invisi
King
v.
in
Maloney’s
Justice
dissent
Daniels,
contrast,
In
the
bly small.
State
the
properly
illegitimate
noted
did not admit the substance ex
defendant
too
provenance of the law
a substance
isted,
conviction for
yet the
form the
small
be measured
basis
and unmeasurable was never
invisible
possession.
of a conviction for
(summarily)
theless
affirmed.7 Under the
at
Maloney
706-708. Justice
wrote:
case,
agree
facts of this
I would
with Jus
my
erroneously
In
view we
relied on
that Pelham and Greer
Maloney
tice
Reyes
Cantu Daniels v.
in
should control. Pelham v.
164 Tex.
574
127
(Tex.Crim.App.1978),
(acquit
171
Crim.
holding
first
for the
time that other evi-
tal);
Greer
Tex.Crim.
might
prove knowledge
dence
be used to
(1956) (acquittal;
trace of nar
purposes
for
of possession where the
cotic
after
wipe
on cotton used
needle
quantity of the substance was too small
see also Coleman
injection);
to be measured.
(Tex.Crim.App.1977) (acquittal;
S.W.2d 831
Cantu,
In
plea
the defendant’s
admitted
containing unweighable
vial
amount of co
knowingly possessed
that he
caine estimated
heroin. 546
at
an ounce of
1/28000
cocaine).8
In
quantity
Here
pocket,
To this
immeasurable.
was found in the defendant’s
extent,
majority opinion’s
saliva,
assertion that
it was still wet with
and the defendant
cocaine itself was visible in this case is
obviously
intoxicated.
Justice Clinton's
evidence,
against
great weight
as
accept
concurrence seemed to
that cocaine
experience.
well as human
pipe.
itself had been visible in the
Justices
with the
McCormick Mansfield concurred
regarding
6. For the state of the law
whether
explicit recognition
visibility
of the co-
(as
visibility
opposed
of cocaine
to mere resi-
required.
Justice
caine itself should not
due),
required,
is
see
footnote below. Also
Maloney dissented.
of the ex-
Because none
specifically
note that the included chart
dis-
ceptionally probative affirmative links relied
tinguishes "residue cases” from cases where
case,
upon King
present in
it is
are
this
(or something
the controlled substance
look-
possible
King
that the
court would have ac-
it)
ing substantially
actually
like was
visible.
quitted this defendant.
extremely noteworthy
7.
It
powder
is
that white
event,
proper question
In
is not
“cocaine” was in fact visible in Daniels. The
mark,
but a
residue. Residue is
burn
like
problem
prosecution
was that the co-
question
burnt
or a burnt house. The
quality,
impure,
caine
low
was of such
i.e. so
burnt,
minimally what
not whether a match
that the amount of cocaine was immeasura-
lit some unknown or unknowable substance.
presence
powder
ingredi-
ble. The
in the
beyond recognition
A substance burned
can-
principal
ents used to cut cocaine formed the
visible, especially
not be
if it cannot be
analysis.
affirmative link
court’s
weighed or measured.
In our case modern
technology opined contraband less than 10
King
It
unclear
from
the decision
itself,
mg equivalent
visibility
to less than 0.0003 ounces.
opposed
of cocaine
whether
as
—
residue,
ounces,
suffice,
0.0003
as a matter of fact and a
to mere
will
absent the affir-
present
King,
mative links
in that case.
matter of law cannot be visible. And how
*10
inform
juris-
The
with the
that should
our
drug possession
that
be
ethic
notion
validly
nothing
prudence.
than a
such strained notions be-
proved via
more
When
incarceration,
come a
for
liquid rinse of some surface offends com-
rational basis
law
result
and
accepted
mon
The rule of
must be both unconscionable
sense.
unconstitutional.
today
our court
is an abuse of hard sci-
per-
like
analysis
ence—a rinse
the one
doctrine,
The
link
as
entire affirmative
virtually any
in this case of
surface
formed
applied,
too often
is
reddest of her-
yield surprising
is
re-
almost certain
away
It
attention
rings.
focuses'our
from
a
example,
sults.
that
For
rinse
drug
reality
drug paraphernalia
is
people
car where
smoked
headliner
Non
drug possession.
paraphernalia, not
positive
will
for the chemicals
test
est
is
The instrument
torture
factum.
marijuana
is from
smoke.
If the smoke
a
A
car not a
car.
not torture.
used
new
over,
cigarette
the owner is pulled
and
short,
Truth
how can one
not fiction.
prison
drug pos-
should the driver face
How can the
know
unknowable?10
session?
a
prove
state
a man knows what
scientist
accurately
cannot
measure?
something
legally
The
can
even see or
idea
be
Because
our laws
be first
merely through ultra-violet9
I believe
should
“identified”
rational,
human,
fear-
analysis
at
and foremost
and
or
chemical
odds
molecular
dissent,
lessly true,
again.11
I
experience
respectfully
with
human
our shared
knowledge.
problem,
No
particles
proof
be
stantial
could
minuscule molecular
such
meanders,
trunk,
possessed?
pot
knowingly
sixty pounds
So the law
when there is
polluted
like
or a
well.
syringe
drugs
a muddled stream
perhaps
in hand and
even
Cf.
Pro. 26:26
at his feet. But remove
measurable
drugs,
a conviction is not based on
then such
x
wavelength
light
9.
of UV
about 2
only
conjecture.
science
affirmative
or fact—
7 meters,
or two ten-millionths of a meter.
conjecture, no
Under
one needs
affirmative
analysis
Generally speaking, a UV
should be
murder,
nothing
dead
needs to
for a
capable
resolving objects nearly
as
as small
be stolen for theft.
wavelength,
many
mag
single
i.e.
orders of
possible
human
nitude smaller than
with the
11.Since
and the courts seem unwill-
the state
eye.
strongly urge
ing
cecity, I
to cease their
long, logical
legislature give
of law
physical
Again,
this area
I
world.
affir-
refer to the
links,
look.
are used in the sense of circum-
mative
notes
visibil
dissenting (Assigned).
ity
longer
is no
an element of the offense
it
possible
“Is
not
an individual
possession
of a controlled substance.
right
and a government wrong?
Cantu v.
Are laws to
simply
be enforced
be-
Crim.App.1977), overruling
Coleman
they
cause
are
made? Or declared
(Tex.Crim.App.
any number of
if
good,
they
men to be
1977). Rather, in order to show intent to
are
good?.”
possess,
may rely
a court
on a defendant’s
Thoreau,
Henry David
“A Plea for
links”
“affirmative
to the substance. See
Captain John Brown” 1859
generally King v.