Lead Opinion
OPINION
Appellant, Marara Jean Kibble, appeals a judgment convicting her for possession with intent to deliver cocaine weighing between four and two hundred grams. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2010). In two issues, appellant contends that the trial court erred by admitting testimony describing the use of a drug sniffing dog to detect narcotic residue on seized money and by overruling her objections to the prosecutor’s improper jury argument. In her third issue, appellant asserts that the evidence is factually insufficient to sustain her conviction. We conclude that the admission of evidence concerning the dog’s alert on the money and the State’s closing argument are harmless errors and that the evidence is sufficient to support the verdict. We affirm.
Background
On February 16, 2007, officers from the Houston Police Department (HPD) and the Montgomery County Sheriff’s Department executed a “no knock” search warrant at appellant’s apartment, located in Houston, Texas. The search warrant permitted officers to search for a digital camera and a laptop computer that were stolen from a house in Montgomery County, Texas.
Upon entering the apartment, HPD Officer Garza saw appellant asleep on the sofa and found two other adults in the living area. A fourth adult and an infant were asleep in the bedrooms. When Officer Garza asked whose apartment it was, appellant said she was the renter. Officer Garza gave her a copy of the search warrant and read legal warnings to appellant and the other adults in the apartment.
Officer Garza asked appellant whether there was anything she wanted him to know. In response to his inquiry, appellant stated there were drugs in her red bag near the sofa where she had been sleeping. Officer Garza retrieved the red bag and found what was later determined by a chemist to be thirty-one rocks of crack cocaine, weighing 7.3 grams, and seven individual bags of powder cocaine, weighing 1.3 grams. The officers’ search of the apartment also revealed the camera and laptop computer that were the subject of the search warrant as well as paraphernalia for smoking crack cocaine.
Appellant was arrested and transported to the jail where a female officer searched her. The female officer found $1,400 on appellant in denominations of twenties, tens, fives, and ones. Officer Guerrero, with the HPD canine narcotics unit, testified that he and his assigned dog, Bo, were called to the property room. There, Officer Guerrero was told that, prior to his arrival, the cash had been hidden in the parking lot, but he was not informed where it was hidden. Outside, he released Bo from his kennel and gave Bo the search command. Bo alerted to the location of the money. Testifying as an expert in canine narcotics detection, Guerrero stated that Bo’s alert meant that there was a narcotic odor coming from the bag containing the money. Officer Guerrero noted that he had no personal knowledge of the contents of the bag because he never looked inside it.
At trial, appellant testified that she bought the laptop and camera from a neighbor without knowledge of the theft and that she had never seen the red bag. Appellant and her friend Dona Davis each testified that Davis gave appellant the cash to repay appellant for a purchase made by Davis on appellant’s credit card.
Appellant pleaded not guilty to the jury. The jury found her guilty and the trial court assessed punishment at thirty-five years in prison.
Sufficiency of the Evidence
In her second issue, appellant challenges the factual sufficiency of the evidence that she possessed narcotics with the intent to deliver.
A. Standard of Review
This Court now reviews both legal and factual sufficiency challenges using the same standard of review. Ervin v. State,
If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida,
B. Possession of Cocaine with Intent to Deliver
To demonstrate possession of cocaine with intent to deliver, the State is required to show that (1) appellant knowingly or intentionally, (2) possessed, (3) cocaine, (4) in an amount of greater than four but less than two hundred grams, (5) with the intent to deliver the cocaine. See Tex. Health & Safety Code Ann. § 481.112(a), (d). In order to prove the possession element of this offense, the State is required to present evidence that appellant had actual care, custody, control, or management over the contraband and that appellant knew it was contraband. See id. § 481.002(38) (Vernon 2010); Deshong v. State,
When the accused is not in exclusive possession of the place where the contraband is found, then additional, independent facts and circumstances must link the defendant to the contraband in such a way that it can reasonably be concluded that she had knowledge of the contraband and exercised control over it. Roberson v. State,
Intent to deliver can be proven by circumstantial evidence. Rhodes v. State,
C. Analysis
Appellant challenges the faсtual sufficiency of the evidence. Relying on her own testimony, appellant attempts to show that she did not possess the drugs, that she did not know that the drugs were in her apartment, and that the evidence does not show an intent to deliver the drugs. She also refers to testimony by her cousin, Edward Lofton, and her friend, Davis, both of whom testified that appellant did not possess or sell cocaine from her apartment. Appellant testified that she did not have exclusive possession of the apartment and that numerous people came and went frequently. Appellant contended that she had never seen the drugs before and that the money was from the recent repayment of a loan to Davis. Appellant also denied having made the incriminating statements claimed by Officer Garza. By finding appellant guilty of possession with intent to deliver cocaine, the jury did not find appellant’s evidence credible, and we must defer to the jury’s assessment of the weight to give the evidence. See Williams,
A photo taken at the scene shows the red bag that contained the cocaine was next to appellant’s purse on the couch that appellant was seen lying on when the officers entered the apartment. Additionally, appellant acknowledged during her arrest that there were drugs in “her” red bag near the sofa. Furthermore, objects for using cocaine were found throughout the apartment.
The State also presented evidence tending to establish that appellant possessed the cocaine with intent to deliver. Officer Garza testified that appellant told him that she possessed the narcotics in order to sell them. Furthermore, the cocaine was separated into thirty-one crack cocaine rocks and seven individual baggies of powder cocaine. Officer Garza testified that he had twenty-six years of experience -with the Houston Police Department, fourteen of which were in the narcotics division, and that in his opinion the cocaine was packaged to sell. See Prather v. State,
We conclude that, based on the evidence viewed in the light most favorable to the verdict, the jury could have rationally found each element of the offense beyond a reasonable doubt. See Ervin,
We overrule appellant’s second issue.
Reliability of Expert Testimony Regarding Narcotic Dogs
In the first issue, appellant contends the trial court erred by admitting evidence concerning the narcotic dog’s alert to the scent of narcotics on the money becаuse the expert’s testimony is unreliable. Assuming the trial court erred by admitting evidence concerning the dog’s alert on the money, we conclude the error was harmless.
A trial court’s improper admission of evidence is a noneonstitutional error. See King v. State,
The evidence that the narcotic dog alerted on appellant’s money, indicating that the money was in contact with illegal drugs, tends to suggest that appellant engaged in illegal drug transactions and that she intended to deliver the cocaine found in her possession. See $7,058.84 in U.S. Currency v. State,
We overrule appellant’s first issue.
Improper Argument
In her third issue, appellant contends that the trial court committed reversible error in overruling her objections to the prosecutor’s improper argument.
A. Applicable Law
B. State’s Argument Directed at Appellant’s Attorney
Appellant asserts that the trial court, in оverruling her objections to portions of the State’s jury argument, allowed the State to strike at her over the shoulders of her counsel by attacking counsel’s character for truthfulness.
The State may argue outside the record in response to the defense having done so, but it may not stray beyond the scope of the invitation. Johnson v. State,
The Texas Court of Criminal Appeals maintains a special concern for final arguments that result in uninvited and unsubstantiated accusations of imprоper conduct directed at a defendant’s attorney. Mosley,
Appellant challenges the following argument:
[State]: Does anyone doubt that a camera can fit in this red bag? You know, throughout this entire trial from day one defense counsel has suggested that I’m not being completely truthful with you.
[Defense]: Your Honor, I object at that, that — her claiming that I’m not being truthful with the prosecutor, that is very prejudicial, we object to that. It’s—
[The Court]: That’s overruled.
[State]: He suggested that the officers from the Houston Police Department are not being truthful with you....
Contrary to appellant’s position, the statements by the State’s attorney addressed
Next, appellant contends that the following closing argument made by the State struck at her over the shoulders of her counsel:
Now, everyone in the courtroom, well, practically everyone in this courtroom, took an oath. The judge took an oath. I took an oath as a prosecutor. You took all took oaths as jurors. You took an oath to return a true verdict. Well, those witnesses that testified yesterday, they took oaths too. Now, I take my oath very seriously, obviously Judge Reagin takes her oath very seriously, and I can tell from your attentiveness that you all take your oaths very seriously as well.
Appellant objects to the phrase “well, practically everyone” as tantamount to the prosecutor arguing that defense counsel did not take an oath and is not trustworthy. Appellant cites Lewis v. State, for the conclusion that the prosecutor’s argument was explicitly prohibited.
The prosecutor’s argument here is very similar to one addressed in Lange v. State,
C. State’s Arguments Concerning Credibility of Evidence
Appellant asserts that the prosecutor improperly argued that appellant’s attorney wanted the jury to believe that appellant was telling the truth and the officers were not. The prosecutor argued:
[Djefense counsel wants you to believe that thаt [incriminating] statement [claimed by Officer Garza to have been made by appellant] was never made. Once again he wants you to believe that [appellant], who has all the incentive and all the motive in the world to lie, is telling you the truth.
However, before the prosecutor made this argument, appellant’s counsel had repeatedly argued that the officers were untruthful. Defense counsel argued:
They’re narcotics officers. Hey, this looks like illegal drugs. But they got a problem. They got a problem. The bag, it wasn’t in plain view. Look at the State’s evidence.... Look at the picture. The bag is not open. The bag is closed. Okay. The bag is closed. All right.
Well, how are we going to connect it with somebody? ... I’m sure they found out Ms. Kibble was on parole. Well, this is hers. We’ll just say this is hers.
How are we going to do that? [W]ell, she’s going to say she — she’s going to tell us it was there, because they know the exception to having a warrant is finding something that — when the client — when the accused person makes a statement that leads them to find something they didn’t know about. That’s how they get around it, okay. So they just say, well, she told us that.
We conclude that the prosecutor’s observation that appellant wanted jurors to believe her rather than the officers was a reasonable deduction from the evidence and was made in response to the argument of opposing counsel challenging the veracity of the officers. See Wesbrook,
Next, appellant contends that the prosecutor went purposefully outside of the record to present information to the jury that appellant is on parole with the possibility of it being revoked. During cross-examination of appellant, appellant acknowledged that she was on twenty-five years parole and that if convicted she was looking at a parole revocation. Because the evidence was in the record, the closing argument properly commented on admitted evidence. See Wesbrook,
D. State’s Argument Concerning Plea for Law Enforcement
Appellant complains that the prosecutor used “over the top theatrics to get a conviction, regardless of the propriety of the argument.” The State argued, as follows:
If you find what they said credible, if you believe what they told you, you’re saying to the Houston Police Department, no thank you, I like drugs on my street. No thank you, I like for there to be crack houses where there are babies asleep.
The record shows, however, that appellant’s attorney objected to this argument by stating, ‘Tour Honor, I’m going to object to the State trying to interject punishment argument, plea for law enforcement.” Appellant’s objection concerning “thea-
E. State’s Argument Concerning Pri- or Convictions
Appellant claims that the trial court reversibly erred by refusing to grant a mistrial when the prosecutor improperly argued appellant’s prior convictions. The State made the following argument:
Now, I don’t want anyone to get confused and' think that somehow selling drugs is a victimless crime. Selling drugs is a crime with exponential victims because not only does it impact the user, it impacts the user’s family, it impacts the community that the user lives in, and we already know from her priors that Ms. Kibble has victims in her past that she has victimized. The credit card abuse, she stole someone’s credit card, and made purchases. Unlawful use of a motor vehicle.... ”
After the State made this argument, appellant’s attorney’s objection was sustained and the triаl court instructed the jury to disregard the comment. The prior convictions were admitted solely to attack appellant’s credibility, and it was improper for the State to address the prior convictions to argue appellant had victimized other people in the past. See Sanchez v. State,
We must balance the three Mosley factors to determine the extent of harm caused by this error. First, the record shows that these prior convictions, while argued erroneously during closing, were admitted before the jury and, therefore, the argument does not inject new facts harmful to the accused. See Wesbrook,
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Justice JENNINGS, concurring.
Concurrence Opinion
concurring.
I join the majority opinion, but write separately to specifically explain why I join it in regard to the question of fact presented to this Court by appellant, Marara Jean Kibble, in light of my recent concurring opinion in Ervin v. State,
In her second issue, appellant argues that the evidence is factually insufficient to support her convictiоn for possession with intent to deliver cocaine weighing between
In regard to appellate challenges based on the factual insufficiency of the evidence, the factual-conclusivity clause of the Texas Constitution provides in no uncertain terms that:
[T]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.
Tex. Const, art. V, § 6(a) (emphasis added). The original intent of the drafters of the clause is clear. The clause “requires” that Texas courts make a “distinction” between questions of law and questions of fact. Sw. Bell Tel. Co. v. Garza,
Under the factual-conclusivity clause, this Court has a duty to address appellant’s question of fact as a question of fact, i.e., by neutrally considering and weighing all the evidence in the record, including that which is contrary to the jury’s verdict. Laster,
Regardless, five judges on the court of criminal appeals, in two separate opinions, have recently concluded that in criminal cases “a legal-sufficiency [appellate] standard [of review] is ‘indistinguishable’ from a factual-sufficiency [appellate] standard” of review. Brooks v. State,
Simply put, the court of criminal appeals has neither the jurisdiction nor any lawful authority to do this. In fact, three years prior to issuing its opinion in Clewis, the court itself acknowledged that it simply may not order Texas courts of appeals to use a legal-sufficiency appellate standard of review to decide the questions of fact brought before them on appeal. Ex parte Schuessler,
In regard to the plurality and concurring opinions in Brooks, it is true that under the doctrine of stare decisis that once “the highest court of the State having jurisdiction ” of a matter decides a “principle, rule or proposition of law,” that court and all “other courts of lower rank ” must accept the decision as “binding precedent.” Swilley v. McCain,
More importantly, under the factual-con-clusivity clause, a Texas court of appeals, in regard to its decisions on the questions of fact presented to it, is not a court of rank “lower” than either the supreme court or the court of criminal appeals because the courts of appeals have conclusive, exclusive, and final authority over such questions of fact. As recognized by the court of criminal appeals, the factual-conclusivity clause gives' “final appellate jurisdiction to the courts of appeals on questions of fact brought before” them. Laster,
Accordingly, I join the majority opinion.
Notes
. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2010).