Opinion
No. 05-08-00725-CR
Opinion Filed July 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F07-00655-LK.
Before Justices MOSELEY, BRIDGES, and FILLMORE.
MEMORANDUM OPINION
A jury convicted Bobby R. Whitemon of possession of a controlled substance, cocaine, with intent to deliver. After Whitemon pleaded true to two enhancement allegations, the trial court sentenced him to twenty-five years' imprisonment. Whitemon appeals, arguing the trial court erred by denying his motion for mistrial and later objection to the State's jury argument as comments on his failure to testify and that the evidence was factually insufficient to show intent to deliver. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm. Pursuant to a search warrant, police entered a hotel room where they found Whitemon and Yolanda Edwards on the bed. Edwards threw a crack pipe into the corner of the room. Whitemon and Edwards were detained and a pat down search was conducted on each of them. An officer felt an object between Whitemon's legs that was not a weapon. Two male officers took Whitemon into the bathroom and performed a strip search, which revealed several bags of crack cocaine. One bag contained a large "cookie" of cocaine and seven smaller blue bags contained smaller quantities of cocaine. A female officer searched Edwards, but found nothing. Just outside the door of the room, police found a small blue bag of the type commonly used to package narcotics. Inside the room, they found two crack pipes, a razor blade (also commonly used in packaging illegal drugs), and a writing tablet with notes of debts. Laboratory testing confirmed the substance in the bags as cocaine totaling 27.45 grams. A narcotics expert testified this quantity of cocaine was too large for personal use. He explained that a single dose of crack cocaine is 0.1 grams, with a street value of $10. The amount of cocaine found on Whitemon equaled 274 doses with a total street value of $2,745. In response to the defense's closing argument, in which it was suggested that police had planted the cocaine on Whitemon, the prosecutor argued
It's the most private place there could possibly be, so the defense wants you to speculate as to whether he really possessed. But, again, our burden is beyond a reasonable doubt, not beyond all possible doubt. Defense wants you to speculate, well, what if? Did you hear any evidence to contradict anything that those officers said?The trial court sustained Whitemon's objection to this argument and instructed the jury to disregard the last statement. The trial court overruled Whitemon's motion for a mistrial. The prosecutor continued
If the defense wanted someone, they have subpoena power to bring someone in here and say that those officers aren't credible, but there's no one here to say that. There's no one here to challenge their credibility. The trial court overruled Whitemon's objection to this argument.Whitemon's first three issues complain of the denial of his request for mistrial and the overruling of his objection to the above arguments. We address the first three issues together. Whitemon contends both of the quoted arguments were improper comments on his failure to testify. A prosecutor may not comment on the failure of an accused to testify. Such comment violates the privilege under the Fifth Amendment of the United States Constitution and Article I, § 10, of the Texas Constitution against self-incrimination and the freedom from being compelled to testify against oneself. Griffin v. California, 380 U.S. 609, 612-15 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); see also Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). "To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear." Bustamante, 48 S.W.3d at 765. It is not sufficient if the comment "might be construed as an implied or indirect allusion." Id. The "test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. We review the trial court's rulings for an abuse of discretion. See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (factors considered in determining if improper jury argument warrants mistrial are (1) severity of misconduct, (2) curative measures taken, and (3) certainty of conviction absent misconduct); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (abuse of discretion standard for rulings on objections to evidence). The trial court sustained Whitemon's objection to the first argument, quoted above, and instructed the jury to disregard it. The jury charge instructed the jury that the defendant's election not to testify could not be taken into consideration for any purpose whatsoever as a circumstance against him. An instruction to disregard will cure a comment on a defendant's failure to testify in all but the most blatant cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999). Here the comment was brief and followed by immediate corrective action, which was reinforced by the instruction in the jury charge. We cannot say that the "prosecutor's comment was so blatant that it rendered an instruction to disregard ineffective." Id. at 406. We conclude the trial court's instruction cured any error. Finally, the evidence against Whitemon was strong and his defense rested entirely on the theory that the police planted the cocaine on him. Accordingly, the trial court did not err in denying the motion for mistrial. See Archie, 221 S.W.3d at 700. We also conclude the trial court did not abuse its discretion by overruling the objection to the second argument. The argument referred to the power to compel witnesses, e.g., Edwards, to testify about the officers' credibility; it did not directly comment on Whitemon's failure to testify. See Fogle v. State, 988 S.W.2d 891, 895 (Tex. App.-Fort Worth 1999, pet. ref'd) (noting defendant need not subpoena himself to testify). We cannot say that the prosecutor's remarks "naturally and necessarily" referred to Whitemon's failure to testify or were "manifestly intended" to carry such an impression to the jury. Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987). Whitemon's final issue argues the evidence was factually insufficient to prove he possessed the cocaine with intent to deliver. We apply the appropriate standard of review. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To prove possession of a controlled substance with intent to deliver, the State must prove, in addition to possession, that the defendant intended to transfer, actually or constructively, a controlled substance to another person. See Tex. Health Safety Code Ann. §§ 481.002(8), 481.112(a) (Vernon Supp. 2009). Intent to deliver is a question of fact for the jury to resolve and may be inferred from the acts, words, or conduct of the defendant. Patterson v. State, 138 S.W.3d 643, 649-650 (Tex. App.-Dallas 2004, no pet.). Intent may be shown by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. Id. Expert testimony may also establish a defendant's intent to deliver. Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). Whitemon contends the evidence is factually insufficient because no cash was found on or near him. But "it is not necessary that appellant be found with large amounts of cash to show intent to deliver. Such evidence is only one factor of many that we may consider." Id. at 326. Considering all the evidence in a neutral light and in the context of a hypothetically correct jury charge authorized by the indictment, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. See Wooley v. State, 273 S.W.3d 260, 267-68 (Tex. Crim. App. 2008) (hypothetically correct jury charge standard applies to factual sufficiency review); Watson, 204 S.W.3d at 415. We overrule Whitemon's four issues and affirm the trial court's judgment.
Whitemon's third issue asserts that the Texas Constitution and code of criminal procedure provide greater protection than does the United States Constitution, but cites no authority and offers no analysis supporting the assertion. See Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex. Crim. App. 1991) (briefs asserting rights under Texas Constitution inadequate if they do not provide argument and authority in support).