William Percy Marks v. The State of Texas--Appeal from 209th District Court of Harris County

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Marks v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-93-217-CR

 

WILLIAM PERCY MARKS,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 209th District Court

Harris County, Texas

Trial Court # 645,467

 

O P I N I O N

 

This is an appeal by Appellant Marks from his conviction for possession with intent to deliver cocaine of more than 400 grams, for which he was assessed thirty-five years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $5,000.

On September 30, 1992, Officers Rosales and Whitworth were conducting surveillance of a body shop in Houston as part of an ongoing narcotics investigation. The police officers had information that Colombian drug dealers were using the location to conduct cocaine transactions; and had additional information from a credible informant that Appellant would arrive there to pick up some cocaine.

During the surveillance, Officer Whitworth saw Appellant arrive at the body shop. A vehicle pulled out of one of the bays at the shop and Appellant drove into that bay. Appellant drove out in about two minutes. Officer Rosales began to follow Appellant. Rosales saw Appellant commit several traffic violations including not wearing a seat belt and failing to use his turn signals.

Rosales contacted Officer Calderon, who was on patrol, and told him to stop Appellant if he saw him commit any traffic violations. Officer Calderon saw that Appellant was not wearing a seat belt and had him to pull over and stop. Calderon walked to the vehicle Appellant was driving and asked him for his driver's license and proof of insurance. Appellant responded that he had neither. The officer then informed Appellant he was arresting him for driving without a driver's license, had Appellant step out of his vehicle, and get into the back seat of the patrol car. Appellant was very nervous upon being stopped by the officer. Calderon called for a tow truck and began an inventory of Appellant's vehicle. On the floorboard of the backseat he found a brown-paper bag containing two brick-like packages of what appeared to be cocaine. There were symbols on the packages commonly used by Colombian drug cartels. The bag was visible from the driver's seat of the vehicle. Officer Calderon contacted Officer Rosales who arrived immediately and recovered Appellant's cellular phone, a beeper, and the cocaine. Later analysis of the cocaine confirmed 1.9 kilograms of 78.8% pure cocaine with a street value of $200,000.

Appellant was indicted and convicted of possession with intent to deliver cocaine exceeding 400 grams. He appeals his conviction on four points of error:

Point one: "The evidence was legally insufficient as to a knowing and intentional possession."

In reviewing the sufficiency of the evidence, an appellate court should determine 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 offense beyond a reasonable doubt. Jackson v. Virginia, S.Ct. 443, U.S. 307, 391; Robbini v. State, (Tex. Crim. App.) 847 S.W.2d 555, 558. The evidence for the State was as recited, supra.

Appellant testified that he was in the business of buying, repairing and selling used cars; that he had an annual income of about $20,000; that he was approached by a man he knew only as "Raymond" who wanted to sell him a Buick Riviera; that he picked up the car and drove it to the body shop where he could contact a man named "Pete" (about the car) who was the owner of the shop; that he exited the car and left it for about 20 minutes; that he returned to the car and drove out; that he did not look in the backseat floorboard of the car; that he did not know there was cocaine in the car. It was Appellant's contention that someone could have put the cocaine in the car while he was not in it.

We hold that the evidence, viewed in the light most favorable to the verdict, was such that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Point one is overruled.

Point two: "The evidence was factually insufficient as to a knowing or intentional possession."

Appellant in this point urges this court to review the "factual sufficiency of the evidence" as appellate courts do in civil cases.

Our courts have repeatedly rejected an invitation to review the factual sufficiency of the evidence to support a conviction upon which the State bears the burden of proof beyond a reasonable doubt. Crouch v. State, (Tex. App. Fort Worth) 858 S.W.2d 599, 601, holds there is no such thing as a factual sufficiency review in criminal cases. Richard v. State, (Tex. App. Houston [14th Dist.]) 830 S.W.2d 208, 213-14, holds that a factual sufficiency of the evidence review in a criminal case is impermissible. Moody v. State, (Tex. App. Houston [1st Dist.]) 830 S.W.2d 698, 704, holds that the proper standard of review is 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 offense beyond a reasonable doubt, and rejects any standard of factual sufficiency, even though the appellant, as here, denied committing the offense.

In any event, we have carefully reviewed the evidence and find, and hold, that it is factually sufficient to support a finding of a knowing and intentional possession, and to support the verdict.

Point two is overruled.

Point three: "The trial court erred in permitting the State to make an untimely peremptory challenge."

The prosecutor and Appellant's counsel had turned in their list of strikes. The prosecutor used only eight of her ten strikes. As the clerk was reading the names of the jurors to be seated, she read juror number 17, Mr. Edgar McComb. When Mr. McComb's name was called the prosecutor said, "Your Honor, we have a problem." After an unrecorded bench conference, the trial judge told Mr. McComb, "You were inadvertently seated. You are excused." The rest of the jurors' names were then called.

The jury was then sworn and dismissed for lunch. After the jury was dismissed, defense counsel objected to permitting the State to strike juror 17, Mr. McComb. The prosecutor stated she had understood that juror 17 was among several jurors she and defense counsel had agreed to strike for cause; that when juror 17's name was called and not having been struck for cause, as agreed, she asked to exercise her 9th strike. The court permitted her to do so.

Here, the prosecutor called attention to her mistaken belief that juror 17 had been struck for cause by agreement, and requested to exercise her 9th strike before the calling of the jury list was completed and before the jury had been sworn, and the trial judge permitted her to exercise her 9th strike.

The trial court may allow a peremptory challenge, or a change in peremptory challenge, if the request is presented before the jury is sworn. Pogue v. State, (Tex. Crim. App.) 553 S.W.2d 368; Truong v. State, (Tex. App. Houston [14th Dist.], pet ref'd) 782 S.W.2d 904, 905; Jackson v. State, (Tex. App. Houston [14th Dist.]) 826 S.W.2d 751, 752.

The trial court did not abuse its discretion in permitting the prosecutor to exercise peremptory challenge 9 at the time the court authorized the same.

Point three is overruled.

Point four: "The trial court erred in denying a jury instruction under article 38.23."

Article 38.23, Tex. Code Crim. Proc., provides:

No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution of the United States, shall be admitted against the accused on trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has 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.

The record contains neither an objection to the court's charge nor a request for an instruction under Article 38.23, Tex. Code Crim. Proc.

The failure to properly request an instruction under Article 38.23 fails to preserve error for the purposes of appeal, and such failure does not constitute fundamental error. Kelly v. State, (Tex. Crim. App.) 669 S.W.2d 720, 726; Chapman v. State, (Tex. App. Houston [1st Dist.]) 859 S.W.2d 509, 513; Thomas v. State, (Tex. Crim. App.) 701 S.W.2d 653, 656.

Moreover, from the record, Appellant was not entitled to such an instruction had he requested same.

Point four is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 26, 1994

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