David Michael Starks v. The State of Texas--Appeal from 291st District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

David Michael Starks

Appellant

Vs. No. 11-02-00305-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted David Michael Starks of possessing more than one gram of cocaine. After his plea of true to the allegation of one prior felony offense, the trial court assessed his punishment at confinement for seven years. We affirm.

The Indictment

The indictment charged that, on or about December 18, 2001, appellant unlawfully possessed a controlled substance, to-wit: COCAINE, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams. The indictment also alleged that, prior to the commission of that offense, appellant had a final conviction for the felony offense of robbery.

The Evidence

Only three witnesses testified during the first phase of trial.[1] They were the two police officers who made the arrest and the chemist who tested and weighed the cocaine.

Officer David T. Andree of the Dallas Police Department testified that he and Officer Zachary Kerr were working in the central business district on December 18, 2001. They were both in uniform, and they were in the paddy wagon or police van which is used in connection with the police bicycle officers. Officer Andree was in the passenger seat of the van, and Officer Kerr was driving. They were on patrol in an area which had a large history of drugs in the area. Officer Andree testified that he saw appellant walking through an open lot with his back toward the officer and with his right hand cupped. Officer Andree said that he was about 10 to 12 feet from the man and that he could see a crack pipe in his right hand. Officer Andree then identified appellant as the man that he saw holding the crack pipe. Relevant portions of his testimony read as shown:

Q: When you saw the pipe in the defendant s hand, what did you do and/or say?

A: As we were driving, I yelled at my partner, Got a pipe. Or could have been crack pipe. That s normally one of the two things we say. He stopped. I jumped out, and I grabbed the defendant.

Q: And what was your purpose of jumping out to grab the defendant?

A: A lot of times people run on us. They run on us all the time down there trying to stop and detain them.

Q: This being a violation of the law, were you going to arrest the defendant for this?

A: Yes, ma am.

Q: Prior to actually grabbing the defendant, did he do anything with the crack pipe?

A: Yeah. Right as I was jumping out, he stuffed the pipe in his front right pocket.

* * *

Q: Having seen him put the paraphernalia into the right front pocket, did you look in the right front pocket?

A: Yes, ma am.

Q: And was the crack pipe in there?

A: Yes, ma am.

Q: Was there anything else in there?

A: There was two baggies containing crack cocaine.

Officer Andree testified that they transported appellant to the jail and that a field test of the substances in the two baggies was positive for cocaine. Officer Andree also testified as to his end of the chain of custody on the substances which were submitted to the laboratory for testing. During cross-examination, Officer Andree agreed that he did not have a warrant when he arrested appellant and searched him; he agreed that the sole reason for the arrest and search was because appellant had a crack pipe in his possession in plain view. During his redirect examination, Officer Andree said that, when they retrieved the item from appellant s pocket, it was a crack pipe.

Officer Kerr testified that he was driving the paddy wagon on the date that appellant was arrested. Officer Kerr said that he stopped the van when Officer Andree saw an individual or two walking and that Officer Andree stated: He has something in his hand, or I think I see a crack pipe, or something to that effect. Officer Kerr did not remember the exact statement, but he said that he stopped the van and that Officer Andree said: He s putting a pipe in his pocket or something like that. Officer Kerr also identified appellant as the man that Officer Andree arrested. Officer Kerr said that Officer Andree did the search incident to arrest and found a small baggie of what Officer Kerr believed was crack cocaine. Officer Kerr said that Officer Andree retrieved the crack pipe first and then subsequently found the crack cocaine. Officer Kerr said that he saw Officer Andree do the field test and place the contraband into the drug lock box. Officer Kerr said that there might have been a couple of other people in the area but that appellant was by himself at the time of his arrest. During his cross-examination, Officer Kerr agreed that he did not see the crack pipe prior to the arrest. During his redirect examination, Officer Kerr said that he was familiar with crack pipes and that the item which was taken from appellant s pocket was a crack pipe.

The last witness was Carolyn Kleiman of the Southwestern Institute of Forensic Sciences. She was the chemist who tested and weighed the contraband. She testified that there were two baggies containing hard tan material, that the hard tan material contained cocaine, and that the total weight was 3.5 grams.

Point of Error

Appellant presents a single point of error. He argues that the trial court erred in refusing his request for a jury instruction pursuant to TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp. 2003). That article provides that no evidence obtained in violation of any federal law or in violation of any law of this State shall be admitted in evidence against the accused on the trial of any criminal case. That article also provides:

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. (Emphasis added)

This point of error is overruled because the evidence does not raise an issue. The legal evidence does not cause any reasonable doubt about whether the evidence was obtained in violation of any federal or state law. Officer Andree had the right to make the arrest and to make the search incident to arrest. There was no factual dispute for the jury to resolve concerning the admissibility of the evidence. See, e.g., Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App.1986), where the court said:

A trial court is required to include a properly worded Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. (Emphasis added)

This Court s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

July 3, 2003

Do not publish. See TEX.R.APP.P.47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and Dickenson, S.J.[2]

[1]Appellant s testimony during the punishment phase need not be discussed.

[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.