Opinion issued on March 11, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00577-CR
MICHAEL MONTE OLIVER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 896765
MEMORANDUM OPINION
A jury found appellant, Michael Monte Oliver, guilty of possession with intent to deliver a controlled substance, namely, cocaine, weighing more than four grams and less than 200 grams and assessed punishment at 12 years’ confinement and a $4,000 fine. In four points of error, appellant contends that 1) there is legally insufficient evidence to support the jury’s finding that he had the intent to deliver a controlled substance; 2) the trial court erred in denying his motion for mistrial, first, because the prosecution improperly commented on his failure to testify, and, second, because the prosecution made a material misrepresentation regarding the identity of a confidential informant; and 3) the trial court erred in permitting prosecutorial argument that appellant should be convicted on the basis of the character of his associates. We affirm.
Background
On December 14, 2001, Houston Police Department [HPD] officers executed a search and arrest warrant at a house in Harris County, pursuant to information obtained from a confidential informant used to make a controlled buy at that house two days earlier. When officers executed the warrant, HPD narcotics officer Kevin Breen entered the house first. Officer Breen testified that he saw appellant get up from a chair in the living room, and, that in the built-in cup holder in the arm rest of appellant’s chair, Officer Breen saw a plastic bag containing what he believed to be crack cocaine. Officer Breen further testified that appellant had a marihuana cigar in his hand, and, that he could smell marihuana burning and see smoke “hanging in the air.”
In addition, on a table in the living room, Officer Breen saw a plastic bag of marihuana and an eyeglass case containing a “cookie” of crack cocaine in a plastic bag. Officer Breen testified that a dealer would typically cut off sections of a “cookie” of crack cocaine into smaller pieces for street sale. Connie Dieringer, a criminalist with HPD’s Crime Laboratory, testified that she tested the evidence recovered and determined that the baggie found in the cup holder of the chair where appellant had been sitting contained 4.02 grams of cocaine.
HPD officers located two other co-defendants in the house, Isaac Owens and Larry Daniels. Owens was crouched down on the floor in the living room, with a loaded gun next to him. Daniels was found with a crack pipe in his possession in the back bedroom. Officers also found a second handgun in the back bedroom. A fourth man, Julian Nelson, testified that he had been in the house earlier that evening, and that he knew cocaine was being sold from the house.
Daniels testified that he accepted the State’s plea bargain offer in exchange for his truthful testimony at appellant’s trial. Daniels testified that on the night of December 14, 2001, he went to the house because he was looking for a place to stay and because he had heard that appellant and Owens were selling crack cocaine at the house. Daniels testified that appellant answered the door when he knocked and that he told appellant that he wanted a “dime,” meaning that he wanted to purchase $10 worth of crack cocaine. Daniels explained that appellant had a bag with broken up little rocks and that appellant handed him one of those rocks in exchange for $10. Daniels testified that appellant told him he could stay in the back bedroom if he cleaned up after the puppies. Daniels further testified that approximately 15 minutes after his arrival, the police entered and executed the search warrant.
Officer Breen testified that, based on the general condition of the house, it did not appear that the persons inside were actually living in the house. He further testified that there were no dishes in the house, no clothing in the closets, and minimal furniture. Officer Breen explained that there were holes in the walls, and that, from room to room, through the closets, the sheetrock had been knocked out. Officer Breen testified that, with the exception of the crack pipe found on co-defendant Daniels, there was no other narcotic-related paraphernalia around the house, causing him to surmise that the three people inside were there to sell crack cocaine, rather than use it themselves.
Further, Officer Breen testified that it was unusual for a crack user to possess the quantity of cocaine found in the house. Officer Breen explained that the way the cocaine was already cut up indicated that it was for sale. Officer Breen also testified that, based on the manner in which the house was furnished, secured, and being used, and, the fact that he made a controlled buy at the house two days earlier, he believed that the cocaine possessed by the suspects was intended for sale.
Sufficiency of the Evidence
Appellant contends that the evidence presented at trial was insufficient to support the jury’s finding that he intended to deliver the controlled substance at issue, citing the test for legal sufficiency.
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984).
To establish unlawful possession with the intent to deliver a controlled substance, the State must show that (1) a defendant possessed a controlled substance,
(2) he knew he possessed a controlled substance, and (3) he had the intent to deliver the controlled substance. Tex. Health & Safety Code Ann. § 481.112 (Vernon Supp. 2004). The State may prove that a defendant knowingly possessed contraband by offering circumstantial evidence affirmatively linking him to the contraband. Brown v. State, 911 S.W.2d 744, 746-48 (Tex. Crim. App. 1995). A defendant’s intent to deliver the contraband may also be proved by circumstantial evidence, including the evidence surrounding its possession. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); Mack v. State, 859 S.W.2d 526, 528 (Tex.App.—Houston [1st Dist.] 1993, no pet.). Factors courts have considered include: (1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant’s possession; (3) the manner of packaging; (4) the presence of narcotic paraphernalia (for either use or sale); (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a narcotic user. Williams, 902 S.W.2d at 507.
Viewing the evidence in the light most favorable to the prosecution, the evidence established that (1) appellant was arrested in a crack house where, two days prior, Officer Breen used a confidential informant to make a controlled buy; (2) the contraband in the cup holder of the chair in which appellant was sitting was positively tested as cocaine weighing 4.02 grams, and the other baggie of contraband, recovered from the living room where appellant was located, tested positive for cocaine, weighing 16.7 grams; (3) Officer Breen testified that 4.02 grams of crack cocaine could be broken into approximately 40 individual doses with a street value of approximately $400; (4) Officer Breen further testified that it was not typical for a crack user to possess the quantity of cocaine found in the house, and, that the way that the narcotics were already cut up indicated that it was for sale; and (5) Daniels testified that appellant sold crack cocaine to him approximately 15 minutes before the officers’ arrival at the house.
Based upon the record presented, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Taylor, 10 S.W.3d at 685. Accordingly, we hold the evidence was legally sufficient to support appellant’s conviction.
We overrule appellant’s point of error.
Jury Argument
The State’s Comment on Appellant’s Right Not to Testify
Appellant contends that the trial court erred in failing to grant a mistrial when the State, in its closing guilt/innocence argument, commented on appellant’s silence. The denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999).
Neither the trial court nor the prosecutor may comment on the defendant’s failure to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). Such a comment violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the United States Constitution and the Texas Constitution.
Appellant asserts that, during the State’s jury argument, the prosecutor made repeated references to appellant’s silence. More specifically, appellant complains of the following comments made by the prosecutor during the State’s closing argument at the guilt/innocence phase:
STATE: They’re all felons. They’re all drug users or dealers. That’s the type of people that Mr. Oliver is hanging out with. But he would like you to believe that —
DEFENSE TRIAL COUNSEL: Judge, I would like to object to any statement about Mr. Oliver would like anyone to believe.
TRIAL COURT: Sustained. Disregard that, members of the jury. That’s totally improper. Don’t consider that for any purpose whatsover in this trial.
DEFENSE TRIAL COUNSEL: Ask for a mistrial.
TRIAL COURT: Denied.
STATE: He’s hanging out with three felons on that day. It is absolutely his right not to testify. But you can also consider the type of people that are with him.
DEFENSE TRIAL COUNSEL: Judge, I’ll object to her commenting on his right not to testify.
TRIAL COURT: Sustained. Disregard that comment, members of the jury. Do not consider it at all in the determination of this case.
DEFENSE TRIAL COUNSEL: Request a mistrial.
TRIAL COURT: Denied.
The only statement in the above exchange that could be construed as a comment regarding appellant’s silence is the prosecutor’s statement that “[i]t is absolutely his right not to testify.” At trial, appellant objected to the State’s remark on the basis that it commented on appellant’s right not to testify. In his brief, appellant complains that it is a clear reference to his silence at trial.
The complained-of comment was a recognition that appellant possessed a right not to testify, as distinguished from cases in which the State comments negatively on a defendant’s failure to testify. See Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). In Fuentes, during the State’s argument at punishment phase, the prosecutor commented that “[w]e respect [appellant’s] right to remain silent and we’ve done that and we’re continuing—.” Id. Fuentes’s objection to this comment was sustained, and the jury was instructed to disregard the comment, but his motion for mistrial was denied. Id. The Court of Criminal Appeals affirmed, opining that, to the extent such comment could be construed as commenting on the defendant’s failure to testify, it was not so inflammatory that any prejudicial effect could not have been removed by the trial court’s instructions to disregard the remark. Id. Likewise, here, the State’s comment referencing appellant’s right not to testify was not so inflammatory that any prejudicial effect could not have been cured by the trial court’s instruction to disregard the comment.
Accordingly, we overrule appellant’s point of error.
Appellant’s Rule 404 Objection to Jury Argument
Appellant also contends that the trial court erred in allowing the State to argue that appellant should be convicted based on the character of the “company that he keeps.”
In addition to the argument discussed previously, the State further argued that, “[i]t’s sometimes said that you can judge the character of a person by the company that he keeps.” At trial, appellant objected on the basis that the State’s comment was “improper argument under rule 404,” and the trial court overruled his objection. See Tex. R. Evid. 404. Assuming without deciding that the trial court erred, we conclude that such error, if any, was harmless. See Tex. R. App. P. 44.2 (regarding reversible error in criminal cases).
Generally, most comments that fall outside the areas of permissible jury argument will be considered to be non-constitutional error under rule 44.2. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (delineating the four permissible areas of jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the argument of opposing counsel, and (4) pleas for law enforcement.). Accordingly, we apply the harm analysis for nonconstitutional errors. Martinez, 17 S.W.3d at 692.
Rule 44.2(b) provides that a non-constitutional error that does not effect substantial rights must be disregarded. Id; see also Washington v. State, 16 S.W.3d 70, 73 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (a substantial right is affected when the error had a substantial and injurious effect or influence in determining jury’s verdict) (citation omitted). In determining whether improper jury argument was harmful, we look to three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the effect of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259.
We utilize the Mosely test to analyze the State’s argument; specifically, the statement that “It’s sometimes said that you can judge the character of a person by the company he keeps.” Under the first Mosley factor, we consider the severity of the misconduct, if any. Id. The State argues that the prosecutor’s comment constituted a reasonable deduction from the evidence, and, that the prosecution was properly urging the jury to use common sense in their deliberation process. We are to afford the prosecution a wide degree of latitude in drawing reasonable deductions from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
The evidence revealed that, on the date of appellant’s arrest, three convicted felons were present in the house, along with appellant. All three individuals testified regarding their prior felony convictions. Further, on three other occasions during the State’s closing argument, the prosecutor commented, without objection, that appellant was in the presence of three felons on the date he was arrested. Based on the record as a whole, we conclude that this lone statement did not constitute severe misconduct, was a deduction from the evidence, and did not have a prejudicial effect on the jury.
Under the second Mosely factor, we consider the effect of any cautionary instruction by the trial court. Id. The record shows that the trial court overruled appellant’s objection, and, therefore, no curative measures were adopted. However, under these facts, we conclude that this factor carries little weight in our analysis.
Finally, under the third Mosely factor, the evidence supporting the jury’s verdict was strong, and the certainty of his conviction, absent the alleged misconduct, was high. We conclude that, given the mildness of the State’s comment and the strength of the evidence supporting appellant’s conviction, any error associated with the State’s comment was harmless. Martinez, 17 S.W.3d at 694. We overrule appellant’s point of error.
Identity of the Confidential Informant
Finally, appellant contends that the trial court erred in denying his motion for new trial because the State, prior to trial, made a material misrepresentation to the trial court and to appellant regarding the identity of the confidential informant. We review a trial court’s denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The trial court is given great deference, and may be overruled only if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial court has broad discretion in judging the credibility of the witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Dusenberry v. State, 915 S.W.2d 947, 949-50 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
Here, appellant asserts that the State misrepresented the identity of the confidential informant at the pretrial hearing, and that, because appellant relied on the State’s misrepresentation in preparing and presenting his case, appellant should be granted a new trial. The record, however, does not support appellant’s contention. What appellant purports to be a material misrepresentation by the State as to the identity of the confidential informant is, at most, an injudicious remark delivered in reaction to conjecture by co-defendant Daniels’s counsel regarding the confidential informant’s identity. Further, the testimony that appellant cites as evidence of the alleged misrepresentation, fails to support his assertion.
The record shows that appellant and his co-defendant Daniels filed a combined pretrial motion for the discovery of the name of the confidential informant. During the pretrial hearing on the motion, Daniel’s trial counsel, Ms. Melontree, told the trial court that she “fe[lt] strongly that Mr. [Julian] Nelson was the informant,” and offered into evidence an application for the subpoena of Nelson. In pertinent part, the following exchange subsequently transpired:
STATE: Judge, our position is that [appellant’s trial counsel] didn’t establish that the defendant or that the C[onfidential] I[nformant] was at the scene on December 14th. I’d ask the Court to take judicial notice of the fact that the offense occurred on December 14th. There has been [sic] showing by defense that the CI was actually at the scene or could provide any material evidence. On that basis, the motion should be denied. However, Ms. Melontree has now provided the Court and everybody else notice as to whom the CI is. So the motion is now moot. So, I’m going to ask you to deny it on that basis for her client.
TRIAL COURT: All right. Last words, [appellant’s counsel].
APPELLANT’S TRIAL COUNSEL: Based on the representations, I would just like to know if the information in Ms. Melontree’s application for subpoena has the correct address. Or if the telephone number is available, we’d like that telephone number as well.
TRIAL COURT: Do you know any more than Ms. Melontree knows?
STATE: No, sir.
TRIAL COURT: The subpoena is now part of the evidence in this record. . . . As to the form of the motion, it’s denied in each case.
After his conviction, appellant filed a motion for new trial, alleging, in pertinent part, that his conviction was based in part upon a misrepresentation by the State as to the identity of the confidential informant. In a sworn affidavit offered in support of appellant’s motion for new trial, appellant’s counsel misreported that, at the pretrial hearing, “the representative of the state [sic] of Texas said that the informant was Julian Nelson.” Warren Diepraam, the prosecutor who represented the State during the pretrial hearing, filed a sworn affidavit in response to appellant’s motion, reporting, in pertinent part:
The officers never informed me of the identity of the informant. As such, I had no reason to disbelieve Ms. Melontree’s allegations that Julian Nelson was the informant. I never attempted to confirm or deny whether Mr. Nelson was the informant, because he was not present at the time the search warrant was executed.
After consideration of the arguments and affidavits from both sides, the trial court denied appellant’s motion.
Giving great deference to the trial court, we find nothing in the record to indicate that the trial court’s decision was either arbitrary or unreasonable. Lewis, 911 S.W.2d at 7. Appellant had the burden of proof on his motion for new trial. Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). As evidence, appellant offered the sworn affidavit of his trial counsel, which alleged that appellant was harmed by the State’s “apparent misrepresentation” regarding the identity of the confidential informant. As proof of the alleged misrepresentation, appellant’s trial counsel attested that, on the same day HPD Officer Breen testified that the confidential informant had not been in the courtroom, Nelson, in fact, had been in the courtroom.
A careful review of the record, however, reveals that there is no way to ascertain exactly what time Nelson entered the courtroom on the day in question. Thus, we do not construe Breen’s statement as testimony that Nelson was not the confidential informant. Nor do we construe the prosecutor’s comments to be a material misrepresentation regarding the identity of the confidential informant. See Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996) (to prove a material misrepresentation in a probable cause affidavit, a defendant must establish by a preponderance of the evidence the existence of a falsehood, made knowingly, intentionally, or with reckless disregard for the truth, and, that it was material to proving probable cause) (citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978)). Furthermore, it was within the sole discretion of the trial court to judge the credibility of the affiants and to weigh the evidence to determine whether a different result would occur upon retrial. Dusenberry, 915 S.W.2d at 949-50. We will not substitute our judgment for that of the trial court. Salazar, 38 S.W.3d at 148.
Accordingly, we overrule appellant’s point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Higley.
Do not publish. Tex. R. App. P. 47.2(b).