MICHAEL EARL LUTTRELLFROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01399-CR
 
 
MICHAEL EARL LUTTRELLFROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, BAKER AND KINKEADE
OPINION BY JUSTICE McCLUNG
JUNE 21, 1989
        Michael Earl Luttrell appeals his conviction for possession of cocaine. We affirm the trial court's judgment.
        On April 3, 1987 at approximately 10:20 p.m. two City of Dallas police officers saw Luttrell driving recklessly, occupying both lanes of traffic on a two-way street. The officers swerved onto the shoulder to avoid a collision, turned around, pursued, and stopped Luttrell. Upon approaching the Luttrell vehicle, they saw Luttrell and two passengers moving around inside the vehicle as though to conceal something or perhaps grab an object. Fearing for their safety, the officers ordered all occupants out of the car.
        As Luttrell got out of the vehicle the officers saw a clear plastic baggie containing what appeared to be marijuana protruding from Luttrell's right jacket pocket. He was placed under arrest and searched. The officer found a package of cigarettes with a small zip-lock bag between the cellophane and the cardboard package, containing what the officer believed to be a controlled substance. A Tylenol bottle was also found in Luttrell's right front jeans pocket. Inside this bottle was another small zip-lock baggie containing what the officer suspected to be a controlled substance. Luttrell had nearly $3,000 cash in his possession.          In a later inventory search of the vehicle the officers found a purple Crown Royal bag on the floorboard between the front seats. Inside this bag was a checkbook with Luttrell's name and address, two ledger books containing names, a film canister containing several more small baggies filled with a white crystallized substance and a jar containing baggies filled with a white substance, which was later determined to be amphetamine. Further, the bag contained a scissor-like utensil, cigarette rolling papers, and a baggie of marijuana. On the driver's side floorboard was a small, gray case containing an electronic scale, seventy to eighty empty clear zip-lock bags, and a spoon.
        Luttrell first argues that the evidence is insufficient to support conviction for possession of cocaine. Appellate review of sufficiency is limited to determining whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Girard v. State, 631 S.W.2d 162, 163 (Tex. Crim. App. 1982); Lopez v. State, 630 S.W.2d 936, 940 (Tex. Crim. App. 1982). In an unlawful possession of a controlled substance case, the State must prove that the defendant exercised care, control, and management over the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Control need not be exclusive. However, when an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Id.
        The affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983). The following factors have been enumerated as facts and circumstances that establish the necessary affirmative link: (1) the contraband was in open or plain view; (2) the place where the contraband was found was in close proximity to the accused and readily accessible to him; (3) the amount of contraband found was large enough to indicate that the accused knew of its presence; and (4) the accused was closely related to other persons in joint possession of the contraband and the conduct of the accused with respect to the contraband was such as to indicate his knowledge and control. Earvin v. State, 632 S.W.2d 920, 924 (Tex. App.--Dallas 1982, pet. ref'd).
        Here, Luttrell was the driver of the vehicle in which the contraband was found. The contraband was in a bag between the driver and passenger seat, readily accessible to him. Luttrell's check book was inside the bag that contained the narcotics. Narcotics were found on Luttrell's person. A case containg a sophisticated scale of a type used to measure out small quantities of narcotics, and narcotics paraphernalia was on the driver's side floorboard of the vehicle. Luttrell had $3,000 in cash on his person.
        We conclude that there is sufficient evidence to permit the inference and affirmatively link Luttrell to the narcotics seized. We emphasize here that it is not for us to decide whether the evidence at trial established an appellant's guilt beyond a reasonable doubt; rather, after viewing the evidence in the light most favorable to the prosecution, we simply determine that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Lopez v. State, 630 S.W.2d at 940. We overrule appellant's first point of error.
        Luttrell also argues that his motion to suppress the evidence found in the Royal Crown bag should have been granted because those items were seized as the result of his illegal detention. Luttrell concedes the validity of the initial stop of the vehicle, however, he urges, the officers were not authorized to demand that he and his companions exit the vehicle. We disagree.
        Once a motor vehicle has been detained for a traffic violation, a police officer may order the occupants out of the vehicle without violating the Fourth Amendment's proscription against unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). Further, once a bona fide stop or arrest has been made, the police officer may make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view he may arrest for that offense and incident thereto conduct an additional search for physical evidence. Taylor v. State, 421 S.W.2d 403, 407 (Tex. Crim. App. 1967) (Op. on Rehearing), cert. denied, 393 U.S. 916 (1968).
        Luttrell presented evidence at trial that the vehicle which he was driving was equipped with tinted glass and louvers to shade the rear window, thus making it extremely difficult for the officers to see into the vehicle to observe any movement which would justify ordering the occupants to exit the vehicle. Even if we assume that the officers could not see into the vehicle, their actions did not violate appellant's Fourth Amendment rights. The officers arrested Luttrell when they discovered a bag of marijuana sticking out of his jacket pocket while he was being detained for the initial traffic offense.
        Luttrell presented evidence in a pretrial hearing tending to show that he had been the subject of a six-month ongoing investigation and that his stop was a pretext stop and arrest.
        In a pretrial motion to suppress, the trial court is the exclusive finder of fact and may choose to believe or disbelieve any or all of a witness' testimony. Lee v. State, 686 S.W.2d 255, 257 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd).
        Here, the trial court chose to believe the officer's testimony that they were not familiar with Luttrell prior to their stopping him for this violation. The second point of error is overruled.
        Luttrell maintains that the trial court erred in permitting the State to introduce evidence that Luttrell had, in the past, used cocaine and other controlled substances claiming such evidence constituted evidence of extraneous offenses. The following testimony was elicited from one of the occupants of the vehicle, a defense witness, in cross-examination by the State:
        Q    He doesn't use cocaine, amphetamine and methamphetamine, does he?
 
        A    I don't know what he does.
 
        Q    Well would you agree that you know him better than anybody else in the court room?
 
        A    Yes sir.
 
        Q    You have known him for fifteen years?
 
        A    Yes sir.
 
        Q    And as far as you can say, based on your knowing him for fifteen years you can testify that based on your knowledge of him he does not use cocaine, methamphetamine or amphetamine, does he?
 
            MR. HARTMAN (defense counsel): We're going to object, Your Honor.
 
            THE COURT:        What basis?
 
            MR. HARTMAN:        One, trying to make the defendant guilty of, say, extraneous offenses or things that he is not on trial for and its just prejudicial.
 
            MR. HINES (prosecutor): Your Honor, the State's position, the reason for asking this question is to show what drugs the defendant had on his possession were not for his personal use but were in fact for sale. That's the reason I am asking this question. This is an individual who knows him and if he was using drugs, this man would probably know about it. I want to show that he doesn't have those drugs for any other purpose other than to sell it or distribute it. That's the reason I'm asking if he knows whether or not he uses --
 
            MR. HARTMAN:        That's not what he asked.
 
            THE COURT:        Overrule your objection you can answer it.
 
        A    Yes sir.
 
        Q    (By Mr. Hines) Based on your knowledge of Mr. Luttrell does he use cocaine, methamphetamine or amphetamine based on what you have observed and what you know of him over the 15 years that you have been acquainted?
 
        A    I have known of occasions.
 
        Q    What's his drug of choice?
 
        A    I don't know, I never asked him his choice.
 
        Q    How many times have you seen him use drugs in the past 15 years.
 
        A    Not very many.
        The test for determining the admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any. It has been consistently held that an accused is entitled to be tried on the accusation made in the State's pleading and that he should not be tried for some collateral crime or for being a criminal generally. Albrecht v. State, 486 S.W.2d 97, 99-100 (Tex. Crim. App. 1972).
        The State attempted to establish evidence that Luttrell did not use drugs in an effort to prove that his possession of these drugs was not for use but was with intent to sell them. Apparently the jury was not persuaded. They convicted appellant for possession, not possession with intent to deliver. If we assume, but do not so hold, that the trial judge erred in admitting this testimony, the evidence of appellant's guilt of possession of cocaine is overwhelming. We cannot state that there is a reasonable possibility that the admission of this testimony deprived appellant of a fair and impartial trial. See Soffar v. State, 742 S.W.2d 371, 378 (Tex. Crim. App. 1987); Woolls v. State, 665 S.W.2d 455, 471-72 (Tex. Crim. App. 1983) cert. denied 468 U.S. 1220 (1984). We overrule the third point of error.
        Luttrell continues with an argument that the prosecutor made an improper jury argument outside the record when he "apologized" to the jury as follows:
                I'm sorry we are not able to take that twenty-nine hundred and eighty-five dollars and turn it over to the State since it was by all reasonable deduction from the evidence the result of illegal drug trade.
 
                Sometimes the paperwork is overwhelming as is the drug problem that we have in our society. Sometimes, ladies and gentlemen, there are just not enough folks out there working on this side to help crush the ugly tentacles of the octopus of the criminal drug world when it raises its ugly head as it has right here. There's just not enough because there's more of them out there than there are men in blue and people down here at your District Attorney's Office --
Luttrell argues that the prosecutor was trying to explain that the money was not available due to a procedural error, not because the State lacked proof that the money was related to drug activity. We conclude that if it was error, Luttrell was not harmed because the jury did not find posession with intent to deliver. We overrule the fourth point of error.
        Luttrell insists that the State made other improper jury argument outside the record. Luttrell attempted to persuade the jury that he was detained in a pretext traffic stop; that he was the subject of an ongoing investigation by the police for drug dealing.
        The prosecutor said to the jury:
        . . . if the police had evidence that this man was involved in the drug trade, they could go get a search warrant and search his house long before April 3rd, 1987 without ever having to worry about there being a traffic stop, but there's no evidence that that happened. . . .
        Jury arguments, to be proper, need to be within the areas of: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973). Even though the argument made by the prosecution may have referred to a matter not in evidence, i.e. whether or not the police had evidence sufficient to obtain a warrant to search Luttrell's home, this argument was made in response to and was invited by Luttrell when he argued that his detention was a pretext stop. Being invited, this argument does not constitute reversible error. Miller v. State, 479 S.W.2d 670, 672 (Tex. Crim. App. 1972). We overrule the fifth point of error.
        Finally, Luttrell avers it was error for the State to invite the jury to speculate as to the personal beliefs of defense counsel. The statement made was:
        MR. HINES:        He didn't even say, "Folks, my man did not possesses [sic] these drugs with intent to deliver according to the evidence that you have heard." He never said that, did he? I found that a glaring error, maybe not error -- something was glaringly missing by its absence in his argument. He never said that.
 
                I think that's very telling about how he views the evidence in this case. I take that to mean since he didn't mention anything to you about it, that he must believe or certainly does not dispute the evidence that the defendants did know that the drugs were there and that he did have it with the intent to deliver.
 
        MR. HARTMAN:        Objection; improper argument asking them to base a verdict on what I as a lawyer believe.
 
        THE COURT:        Overruled.
        We conclude that the State's argument did invite the jury to speculate about matters not in the record and, as such, constituted error. See Revis v. State, 714 S.W.2d 123 (Tex. App.--Houston [1st Dist.] 1986, no pet.) (State's argument focused on defendant's failure to cross-examine State's reputation witnesses was improper). However, this finding does not end our inquiry. When the record reveals error in the proceedings in the trial court, we must reverse the judgment unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or the punishment. Rule 82(b)(2) of the Rules of Appellate Procedure.
        The purpose of this argument by the State was to convince the jury that even Luttrell's counsel believed that Luttrell possessed the narcotics found in the vehicle with an intent to deliver them. The jury, however, by their verdict, acquitted Luttrell of possession with intent to deliver. Since the evidence of Luttrell's guilt of possession of the narcotics is overwhelming, and the jury's obvious failure to be affected by the offending argument, we determine, beyond a reasonable doubt, that the error made no contribution to the conviction or to the punishment and was, therefore, harmless. We overrule the sixth point of error.
        We affirm the trial court's judgment.
 
 
 
PAT McCLUNG
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01399.F
 
 
 
 
 
 
File Date[01-02-89]
File Name[881399F]