Melvin C. Paul v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-024-CR

MELVIN C. PAUL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 21,420-361

O P I N I O N

Melvin C. Paul appeals his convictions for possession with intent to deliver less than twenty-eight grams of cocaine and for delivery of less than twenty-eight grams of cocaine. // Paul was found guilty on both counts, and, as a result of a prior felony conviction that enhanced the range of punishment, the jury assessed punishment at forty-five years in prison and a $2000 fine for the first count and sixty-five years in prison and a $5000 fine for the second count.

In point one Paul contends that the trial court erred in denying his motion to suppress the evidence obtained by an evidentiary search warrant. He argues that the search warrant affidavit does not set forth sufficient facts to establish probable cause. When an evidentiary search warrant is issued, the affidavit must set forth sufficient facts to establish probable cause:

(1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. //

The officer's affidavit stated that he had probable cause to believe that Paul intentionally and knowingly possessed less than twenty-eight grams of cocaine on May 28, 1992. The affiant's belief was supported by information provided by a proven informer as well as the officer's own observations. The affidavit asserted that the confidential informant had personally observed Paul in possession of twelve to fifteen rocks of crack cocaine within the previous twenty-four hours. Furthermore, the affiant asserted that when he and other officers investigated the address provided by the informant, the affiant saw Paul move furtively between the unmarked police vehicles and then put something in his mouth. When the officers approached Paul and asked him to open his mouth, he swallowed several times before opening his mouth. Paul then became very nervous and began to shake. At that point Paul was arrested. The affiant established probable cause that Paul's urine sample constituted evidence of possession of cocaine by asserting that, two hours after an individual swallowed cocaine, a urinalysis would test positive for the presence of cocaine. Finally the affiant asserted that Paul, who was located at the city jail, had possession of and was concealing his urine. Because we find the affidavit sufficient to establish the facts required by article 18.01(c), we overrule point of error one. //

In point two Paul contends that the trial court erred in denying his motion for mistrial during the State's voir dire examination of the jury. The prosecutor asked the following question of the venire:

Under certain circumstances a person that has been charged with a crime, been convicted, gone off to TDC and gotten back out and commits a delivery or an offense that's a first-degree felony type of offense, then that person's punishment range jumps from five to 99 years to a minimum of 15 years to 99 years or life. With the minimum at 15 years to 99 years would anyone have a problem?

[Defense Attorney]: May I approach the bench?

THE COURT: Yes sir.

[Conference at the Bench out of the hearing of the jury]:

[Defense Attorney]: We'd object to the manner in which the question is propounded. Counsel for the State has stated anybody who has gone to the penitentiary and then gets out or words to that effect. And that in a sense is telling the jury that this person has been convicted. He is alluding to the fact that he has been convicted on some prior offense that's the actually I'm objecting that he shouldn't be that specific and state that he has been convicted by the words that he used. For that reason we would object to that question, and I don't think an instruction can cure that to disregard it, and for that reason we would make a motion for a mistrial in the fact that he has told the jury panel that this person has been convicted. And it's improper manner of questioning the jury at this time.

[Prosecutor]: Your Honor, that's that language has been upheld by the Court of Criminal Appeals on cases if a person has been convicted of a crime before and which is what I used. I did not say

THE COURT: Just rephrase that the law states that if a person just preface it with what the law states.

[Prosecutor]: Okay.

THE COURT: Objection overruled. Motion for mistrial denied.

[Whereupon the jury is present and hearing]:

[Prosecutor]: Can everyone under the law the law states that if a person has been previously convicted of a crime that their punishment range would jump, the charge of a first-degree felony from five years to 15 years or 99 years.

[Defense Attorney]: Renew the objection, Your Honor.

THE COURT: Overruled.

[Prosecutor]: So the minimum range would be 15 years to 99 years or life. Now, with the minimum range of 15 years does anyone have a have a difficulty considering the punishment range of 15 years to 99 years or life on the first row?

When the jury may be called upon to assess punishment, it is proper for both the prosecutor and the defense attorney to explain the potential ranges of punishment applicable to an offense that is enhanced by a prior conviction. // A prosecutor should not disclose to the jury the specific allegations contained in the enhancement paragraph of a particular defendant's indictment before the punishment hearing is held. // The record does not reflect, nor does Paul allege, that the prosecutor specifically mentioned Paul's prior conviction during voir dire. Because the prosecutor only generally informed the jury of the applicable punishment range, the trial court did not err in denying his motion for mistrial. We overrule point of error two.

In point three Paul contends that the trial court erred in denying his motion for mistrial during the State's closing argument of the guilt-innocence phase of the trial. The prosecutor introduced his closing argument by suggesting that, because neither the law nor the facts were on the defendant's side, the defense attorney's argument was merely an attack on the government. The prosecutor then said, "He didn't bring you any evidence, didn't talk to you about anything." The defense attorney then objected that the prosecutor's argument was a comment on Paul's failure to testify. Without ruling on the objection, the court instructed the jury to disregard the comment, but denied Paul's motion for mistrial.

Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. // All other arguments are improper.

Impermissible comment upon an accused's failure to testify is made when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure to testify. // It is not sufficient that the language implies or alludes to the failure to testify; the language must necessarily refer to the failure to testify. // In the context given, the statements were neither manifestly intended nor of such character that the jury would naturally and necessarily take them as a comment on Paul's failure to testify. Instead, the prosecutor's comments were proper as a response to the defense attorney's argument referring to the arresting officers as "Jump-Out Boys and Girls" and complaining that "it's deplorable that law enforcement has reached this point." // We overrule point of error three.

In point four Paul contends that the evidence is insufficient to support the verdict in the first count because there is no evidence of intent to deliver. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // Intent to deliver can be inferred from the quantity of the drugs possessed and from other circumstances indicating that the drugs were not merely for personal use. //

Dennis Thane, an officer with the Bryan Police Department assigned to the Street Crime Apprehension Team, testified that he was experienced in the investigation and arrest of cocaine dealers. Thane testified that SCAT concentrates on known drug-dealers in high-volume drug areas. According to Thane, they were investigating a tip of drug dealing on May 28 when he saw Paul standing at the corner of a house. Thane testified that he had seen approximately thirty-five to fifty people attempt to conceal crack cocaine in their mouths. After Paul swallowed the cocaine, Thane conducted a pat-down search. He found $123 in marked bills in his left pants pocket and $1100 in his right pants pocket. Paul was also carrying a pager, often used by drug dealers. According to Thane, the money was in denominations that would be consistent with the sale of "twenties" and "dimes," street terms for quantities of cocaine sold for twenty dollars and ten dollars, respectively. Furthermore, Thane testified that an addict would not be in possession of that much money. In addition, Thane testified that Paul did not possess any drug paraphernalia, which is usually found on addicts but not on dealers. After viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Paul intended to deliver the cocaine he possessed on May 28, 1992. // Because the evidence is sufficient to support Paul's conviction, we overrule point of error four.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 15, 1993

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