Roberto Arevalo Jasso v. The State of Texas--Appeal from 238th District Court of Midland County

Opinion filed November 30, 2006

   In The

   Eleventh Court of Appeals

____________

   No. 11-05-00378-CR

__________

ROBERTO AREVALO JASSO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR30631

O P I N I O N

Roberto Arevalo Jasso was indicted for the offense of possession of cocaine. Appellant entered a plea of not guilty. A jury found him guilty of the offense, and the trial court assessed punishment at 180 days in the Texas Department of Criminal Justice, State Jail Division, probated for 2 years. We affirm.

On February 28, 2005, appellant went to a night club called AClub Arriba.@ Upon being told that narcotics were possibly being sold in the club, Sergeant Bernard Earl Kraft Jr., a certified peace officer working off duty at the night club, notified another off-duty police officer, Paul Paget, to keep an eye on a suspicious individual, Flavio Lujan. The officers followed Lujan to the restroom. When Officer Paget entered the restroom, he saw Lujan and appellant, standing together with appellant=s back to Officer Paget. Appellant was observed in a bent over position with his shoulders moving as he snorted cocaine. Officer Paget asked appellant what he was doing, and appellant threw a clear, plastic bag into the toilet and missed so that the packet of cocaine fell to the floor. Officer Paget placed appellant under arrest. Officer Paget testified that appellant had cocaine on his nose and moustache. Officer Paget retrieved the bag, which was placed in evidence and shown to contain .06 grams of cocaine. When Lujan was patted down, several packets of cocaine were found similar in shape and size to the packet appellant threw toward the toilet.

Appellant argues that the evidence is legally and factually insufficient to support the conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trial of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11. The jury is the sole judge of the weight and credibility of the witnesses= testimony, and due deference must be given to the jury=s determination. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8-9.

The record shows that the packet appellant threw toward the toilet upon the officers entering the restroom was cocaine. There was testimony that appellant had white powder on his nose and moustache but that the powder was not collected and tested and not part of the amount he was indicted for. In order to be convicted of possession of cocaine, the State had to prove that appellant had actual care, custody, control or management of the cocaine. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2006), ' 481.115(a), (b) (Vernon 2003). Given that appellant possessed the cocaine when the police entered the restroom, that he threw the packet toward the toilet, and that no other defensive theory was offered at trial, the evidence is both legally and factually sufficient to support appellant=s conviction. Issue one is overruled.

Next, appellant argues that the prosecutor made an inappropriate comment during closing arguments. The prosecutor said that the evidence was Aclear, well beyond a reasonable doubt.@ Appellant did not object to any of the complained-of jury arguments and, therefore, has waived his complaint on appeal. Tex. R. App. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Loar v. State, 627 S.W.2d 399, 400 (Tex. Crim. App. 1981). Issue two is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

November 30, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

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

McCall, J., and Strange, J.