Koumijian, Paul v. The State of Texas--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PAUL KOUMIJIAN,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00243-CR

Appeal from the

120th District Court

of El Paso County, Texas

(TC# 20010D00128)

O P I N I O N

Paul Koumijian appeals his conviction for possession of a controlled substance while in a correctional facility, for which he was sentenced to 28 years in the Texas Department of Criminal Justice.

 Facts

Paul Koumijian was indicted on January 18, 2001 for possession of a prohibited substance in a correctional facility. The indictment alleged that on October 8, 2000 Koumijian Adid then and there intentionally and knowingly possess a controlled substance, namely MARIJUANA, while in a correctional facility, to-wit: El Paso County Detention Facility.@ The indictment also contained two enhancement paragraphs. Koumijian pleaded not guilty to the charge.

Sergeant Alberto Telles testified first at the trial that commenced May 14, 2001. Sergeant Telles testified that on October 8, 2000, he was working as a corporal at the El Paso County Detention Facility. That morning, he and Officer Daniel Thompson were doing an inspection of cell block 590. Both officers smelled marijuana coming from the cell block. Their supervisor, Sergeant Simmon, was notified, and Sergeant Simmon permitted an unscheduled shakedown of the cell block, whereby a surprise inspection of the cell and its inhabitants was conducted.

Sergeant Telles testified that no drugs were found after an initial search of the inmates and the cell block itself. After a strip search of Koumijian, however, Officer Edgar Baca found marijuana, which Telles described as a green leafy substance in a plastic bag. All of the other inmates were searched, but no other drugs were found.

Officer Thompson, who had also inspected the cell block, confirmed Telles=s rendition of the events. In addition, Officer Thompson stated that he noticed Koumijian smelled more strongly of marijuana than the other inmates.

Officer Baca testified that Koumijian smelled of marijuana as he came out for the shakedown; although the entire floor smelled of marijuana, the odor on Koumijian was very strong.

It was Officer Baca who instructed Koumijian to take off his underwear. When Koumijian complied, a bag fell out and landed by Koumijian=s feet. Officer Baca alleged that Koumijian then said, AThat=s not mine.@ The State submitted the confiscated marijuana into evidence and also presented evidence that the amount of marijuana recovered was 0.47 ounces (13.42 grams).

Koumijian was the final witness. He discussed his prior Texas convictions for possession of marijuana, theft, and possession of methamphetamines, and various crimes he had committed while living in Massachusetts. He admitted that he had the marijuana on him when he was incarcerated. However, he argued, he had not taken it into the facility voluntarily or intentionally because he had been forcibly taken to the facility after his arrest on an unrelated charge.

After the close of argument, the jury found Koumijian guilty. Koumijian pleaded true to the enhancement paragraphs and was sentenced to 28 years of confinement in the Texas Department of Criminal Justice.

Legal sufficiency--usable amount

In his first point of error, appellant argues that the evidence is legally insufficient that he possessed a controlled substance.

On review for legal sufficiency, we view evidence in the light most favorable to the verdict. A rational trier of fact must have been able to find the element of the offense beyond a reasonable doubt. Teer v. State, 923 S.W.2d 11, 17 (Tex. Crim. App. 1996) (adopting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). All of the evidence and any reasonable inferences produced therefrom must be reviewed. Id. The reviewing court=s only function is to ensure the rationality of the fact finder. Id. As Williams v. State, 827 S.W.2d 614 (Tex. App.--Houston [1st Dist.] 1992, pet. ref=d) noted, AIf there is evidence that establishes guilt, beyond a reasonable doubt, and if the trier of fact believes that evidence, [the reviewing court] is not in a position to reverse the judgment on sufficiency of evidence grounds.@ Id. at 616. The fact finder=s conclusions are given great deference, because he is better able to make a determination of credibility, because he has the distinct advantage of viewing the evidence live and seeing the demeanor and expressions of the witnesses. Teer, 923 S.W.2d at 19.

Appellant was convicted under Tex. Penal Code Ann. ' 38.11, wherein A[a] person commits an offense if the person possesses a controlled substance or dangerous drug while . . . in a correctional facility,@ Tex. Penal Code Ann. ' 38.11(d)(2) (Vernon Supp. 2002). AControlled substance@ is defined by section 481.002 of the Health and Safety Code. Tex. Penal Code Ann. ' 1.07(a)(12) (Vernon 1994). The Health and Safety Code, in turn, defines a controlled substance as Aa substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.@ Tex. Health & Safety Code Ann. ' 481.002(5) (Vernon Supp. 2002). Marijuana was a Schedule I hallucinogenic substance both when the incident occurred and when appellant was indicted, Schedules of Controlled Substances, 24 Tex. Reg. 12124 (1999); Schedules of Controlled Substances, 26 Tex. Reg. 796 (2001); see also Tex. Health & Safety Code Ann. ' 481.032 (Vernon Supp. 2002) (requiring the commissioner of public health to establish and modify the schedules and requiring that the schedules be printed in the Texas Register).

It is undisputed that the substance found on appellant was marijuana. Appellant admits as much on appeal, as he did at trial. The officers involved in the shakedown testified that they recognized the substance as marijuana.

Appellant nevertheless argues that, as part of proving he possessed a controlled substance, the State was required to prove that the marijuana within his possession was of a usable amount. It is true that the record contains no direct testimony that the amount of marijuana at issue here, 0.47 ounces, was a usable amount. The State counters that Tex. Penal Code Ann. ' 38.11(d) provides that a person commits an offense if the person possesses a controlled substance or dangerous drug while in a correctional facility, and that the statute does not require proof of a usable amount. We need not reach this issue, however, as the amount of marijuana found in Koumijian=s underwear, almost a half-ounce, was clearly a usable amount.

In Carmouche v. State, 540 S.W.2d 701 (Tex. Crim. App. 1976), the Court of Criminal Appeals was faced with a similar issue. The Court stated, A[i]t would be difficult, if not impossible, to conceive that a half ounce of any leafy substance would not be sufficient to make several cigarettes.@ Id. at 702. Construing Carmouche, the Court further held in Lejeune v. State, 538 S.W.2d 775 (Tex. Crim. App. 1976), A[i]t is clear . . . that where at least one-fourth ounce of marihuana is possessed the court will take judicial notice or infer that there was a usable quantity of marihuana, even in absence of testimony as to usability.@ Id. at 779. In Lejeune, the Court believed that there would be no need to require a chemist or other qualified witness to testify whether the amount involved was a usable quantity. Id. at 780. It stated:

[I]t would now be absurd to reverse this conviction so that such testimony could be produced where in light of the amount involved proof of usability would be superfluous. It should be patently obvious to everyone that >a little over a quarter of an ounce= or 7.7 grams is sufficient for use in a cigarette, the use most commonly made of marijuana . . . or in a pipe. Id.

Just as in Lejeune, we find here that the evidence is legally sufficient that the marijuana involved was of a usable quantity even without direct testimony on that issue. The quantity of marijuana was almost twice as much as the Court of Criminal Appeals has recognized to be a usable amount.

Viewed in the light most favorable to the verdict, we believe that the evidence is legally sufficient to show that appellant possessed a controlled substance. We overrule appellant=s first point of error.

Factual sufficiency--voluntary act

In his second point of error, appellant argues that the evidence is factually insufficient to show he committed a voluntary act.

Under a factual sufficiency standard of review, we analyze all the evidence before us. Unlike with the legal sufficiency standard, the evidence is not viewed in the light most favorable to the verdict. Rather, the evidence is assumed to be legally sufficient and is judged as a whole. Clewis v. State, 922 S.W.2d 126, 128, 134 (Tex. Crim. App. 1996). Only if the verdict was clearly wrong and unjust will it be reversed. Id. at 129 (adopting the standard of review set forth in Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet. ref=d, untimely filed)). It is not enough that the reviewing court feels that a different result would be more reasonable. Id. at 135. If there is even some evidence to support the verdict, the verdict is usually conclusive. The reviewing court=s power is only to prevent manifest injustice. Id.

Appellant cites Brown v. State, 35 S.W.3d 183 (Tex. App.--Waco 2000, pet. granted 6/20/2001, pet. ref=d 6/20/2001), in support of his argument. The appellant in Brown was charged under Tex. Penal Code Ann. ' 38.11(b), for taking a controlled substance into a correctional facility. Id. at 188. In that case, because the appellant had not voluntarily gone into the jail, the evidence was legally insufficient to establish that he voluntarily took marijuana into the jail. Id. at 189.

We believe that appellant=s reliance on Brown is misplaced. Although appellant makes many arguments that might be applicable if he had been charged under subsection (b) of section 38.11, they are irrelevant here. Appellant was not charged with taking a controlled substance into a correctional facility; rather, he was charged with possessing a controlled substance while in a correctional facility, under Tex. Penal Code Ann. ' 38.11(d)(2).

A person commits an offense only if he voluntary engages in conduct, including possession. Tex. Penal Code Ann. ' 6.01(a) (Vernon 1994). Possession, in turn, is voluntary Aif the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.@ Tex. Penal Code Ann. ' 6.01(b) (Vernon 1994); see also Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.--El Paso 1995, pet. ref=d). Here, the evidence indicates that appellant was aware of the marijuana=s presence. Appellant admitted this knowledge. The marijuana had been within his possession from before he was arrested until October 8, when the shakedown occurred. He could have terminated his control before or at the time of his arrest. Within the correctional facility, he had sufficient opportunity to terminate his control. As Sergeant Telles testified, most inmates flush contraband items down the toilet. Therefore, we find factually sufficient evidence that appellant=s possession of the marijuana within the correctional facility was voluntary. We overrule appellant=s second point of error.

Conclusion

We affirm the judgment of the trial court.

SUSAN LARSEN, Justice

June 27, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)