Opinion issued January 23, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00131-CR
EDDIE RICHARD FELDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 838,435
MEMORANDUM OPINIONAppellant Eddie Richard Felder was convicted by a jury of possession with intent to deliver cocaine amounting to four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(d) (Vernon Supp. 2003). The jury found true two allegations in enhancement paragraphs that appellant had previously been convicted of possession of cocaine and robbery, and it assessed punishment at 50-years imprisonment under the repeat-and-habitual-felony-offenders law. Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2003). Appellant brings six points of error alleging he was not given a speedy trial, there was no probable cause to arrest him, the evidence is legally and factually insufficient, the trial court improperly reopened the evidence, and the trial court improperly enhanced his sentence. We modify the trial court’s judgment and, as modified, affirm.
Discussion
In point of error one, appellant contends he was not afforded a speedy trial because his trial did not commence within 120 days of his arrival into state custody, as required under the Interstate Agreement on Detainers Act. Tex. Code Crim. Proc. Ann. art. 51.14, article IV(c) (Vernon 1979); see U.S. Const. amend. VI (right to speedy trial). Although the State admits that appellant’s trial did not commence within the prescribed 120 days of his arrival into state custody, the State points out that appellant’s counsel agreed to six resets. After agreeing to the resets, appellant’s counsel subsequently filed a motion to dismiss, arguing the resets were invalid because they were not granted by the trial court for good cause shown in open court, as required by the Act.
This Court has held that agreed resets are necessary or reasonable continuances for the purpose of satisfying article IV(c) of the Act. Petrick v. State, 832 S.W.2d 767, 772 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). There is no evidence in the record that appellant requested a hearing in open court to establish good cause for the agreed resets or insisted that the trial court personally approve the resets. We are aware of no authority that would allow appellant to agree to a reset and to make a subsequent inconsistent claim that his rights were violated as a result of his agreement.
The Court of Criminal Appeals has held that some rights are so fundamental that they cannot be waived. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Appellant does not argue that this point is fundamental error, much less provide any argument or authority as to why the Marin holding should apply. We are not aware of any authority that would support this point. We hold, therefore, that appellant has waived error, if any, arising from the agreed resets by not timely requesting hearings and the trial court’s personal approvals. See Tex. R. App. P. 33.1(a)(1)(A).
In point of error two, appellant claims the trial court erred in overruling his motion to suppress evidence because the police approached and arrested him without probable cause. In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject all or any part of a witness’ testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). In reviewing the trial court’s decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court’s fact findings. Romero, 800 S.W.2d at 543. If the trial court’s fact findings are supported by the record, an appellate court is not at liberty to disturb the findings absent an abuse of discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991); Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App. 1987). On appellate review, the court will address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.
The Houston Police Department received an anonymous call reporting that an individual had passed out at the wheel of his pickup truck. Officer Roy C. Haine testified that he responded to the call and found appellant unconscious in a pickup truck. The truck was parked at an angle in the street and was straddling two lanes of traffic. The truck’s engine was running with the transmission in “drive,” and appellant’s foot was on the brake pedal. Officer Haine immediately shifted the truck’s transmission to “park,” turned off the engine, and attempted to awaken appellant.
Officer Haine testified that appellant appeared intoxicated and smelled of alcohol. After arresting appellant for public intoxication, Officer Haine conducted a search incident to the arrest and discovered a metal box in appellant’s left front pants pocket. Inside the box were seven pieces of crack cocaine.
Appellant contends Officer Haine had no probable cause to approach the pickup truck and arrest him, because probable cause must be based on something more than uncorroborated information supplied by an unidentified individual. See Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 2332-33 (1983). Appellant’s argument is without merit. Officer Haine testified that he observed appellant’s truck parked at an angle in the street and straddling two lanes of traffic, which are violations of Texas traffic law. See Tex. Transp. Code Ann. §§ 545.060(a), .303(a) (Vernon 1999 & Supp. 2003); see also Tex. Transp. Code Ann. § 542.301 (Vernon 1999) (offense for performing prohibited act). Thus, Officer Haine lawfully stopped and detained appellant for traffic violations. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).
We overrule point of error two.
In point of error three, appellant contends the evidence is legally insufficient to support his conviction, because there is no evidence appellant was aware there was cocaine in the metal box. The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. This inquiry does not require this Court to ask whether we believe that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Appellant correctly asserts the State had the burden of proof to show that (1) he had actual care, custody, control, or management over the contraband and (2) he knew the contraband was cocaine. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2003) (“‘Possession’ means actual care, custody, control, and management.”). Appellant testified at trial that he saw an unidentified female police officer reach into his truck and that he heard the officer say she found the box containing cocaine. Appellant testified that he did not know whether the police officer had the box before she reached into the truck, or whether she actually found it somewhere in the truck. Appellant denied that the metal box was in his pocket.
Viewing the evidence in the light most favorable to the verdict, Officer Haine testified that he discovered the metal box containing cocaine in appellant’s pocket after arresting appellant for public intoxication. Because the cocaine was in appellant’s exclusive possession, there was legally-sufficient evidence for the jury to conclude that appellant had actual care, custody, control, or management over the contraband and he knew the contraband was cocaine. See Foster v. State, 635 S.W.2d 710, 718-19 (Tex. Crim. App. 1982).
We overrule point of error three.
In point of error four, appellant contends the evidence is factually insufficient to support his conviction. In reviewing factual sufficiency, we examine all of the evidence neutrally, and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet. ref’d, untimely filed)).
In making his factual sufficiency challenge, appellant refers to his testimony that he did not have the metal box in his pants and his testimony that an unidentified female police officer “found” the metal box. The weight to be given contradictory evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). An appellate court must show deference to such a jury finding. Id. at 409. After impartially reviewing all the evidence and giving proper deference to the verdict, we hold that the verdict is not so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred.
We overrule point of error four.
In point of error five, appellant claims the trial court erred in allowing the State to introduce testimony during the punishment phase after the State made its initial closing argument. Appellant does not argue that the trial court abused its discretion; instead, he argues the trial court had no discretion to allow the testimony to be admitted.
Although appellant admitted his previous convictions for possession of cocaine and robbery during the guilt/innocence phase, he pleaded “not true” to the two enhancement paragraphs regarding these previous convictions at the punishment phase. The State, therefore, did not have to prove appellant had two previous final felony convictions, but it did have to prove that the second previous felony conviction for robbery occurred subsequent to the first previous conviction for possession of cocaine having become final. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2003).
Before resting during the punishment phase, the State identified penitentiary packets containing copies of judgments documenting appellant’s previous convictions and establishing that appellant’s robbery conviction occurred after his possession-of-cocaine conviction became final. The penitentiary packets, however, were not admitted into evidence. During the State’s closing argument, appellant objected to the State arguing about documents that were not in evidence. The State then requested that the trial court allow it to reopen testimony for the sole purpose of admitting the penitentiary packets, which the trial allowed over appellant’s objection.
Code of Criminal Procedure article 36.02 states, “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). Appellant cites no authority for the proposition that the trial court is precluded from allowing testimony to be introduced during argument. In fact, there is long-standing authority to the contrary. The Court of Criminal Appeals, interpreting the 1895 version of article 36.02, held that it is within the trial court’s discretion whether to allow testimony to be reopened during the State’s closing argument. Welch v. State, 147 S.W. 572, 576 (Tex. Crim. App. 1912); Code of Criminal Procedure, 24th Leg., R.S., § 2, art. 698, 1895 Tex. Crim. Stat. 2, 98 (former Tex. Code Crim. Proc. art. 698, since repealed and recodified). Thus, appellant’s point has no merit.
We overrule point of error five.
In point of error six, appellant contends the trial court erred in allowing the jury to enhance his punishment based on a previous felony conviction for possession of cocaine, when he claims that offense is currently classified as a state-jail felony. See Tex. Penal Code Ann. § 12.42(e) (Vernon Supp. 2003) (previous conviction for state-jail felony may not be used for enhancement under Penal Code section 12.42(d)). The record contains a copy of the judgment from appellant’s previous cocaine-possession conviction, but that judgment does not specify the amount of cocaine. Because there is no way to know, from the record in this appeal, the current classification of the offense for which appellant was previously convicted, we do not reach the merits of appellant’s point.
We overrule point of error six.
Conclusion
We modify the trial court’s judgment to reflect that (1) appellant was convicted of “Possession of controlled substance, namely, cocaine, weighing four grams or more but less than 200 grams, with intent to deliver,” (2) appellant pleaded “not true” to both enhancement paragraphs, and (3) the jury found both enhancement paragraphs “true.” See Tex. R. App. P. 43.2(b), 43.6; Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.). As so modified, we affirm the judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.
Do not publish. Tex. R. App. P. 47.2(b).