Porter v. State
1994 WL 44218, 873 S.W.2d 729, 1994 Tex. App. LEXIS 790 (1994)
Rule of Law:
A defendant is entitled to a jury instruction on a lesser included offense if the lesser offense is included within the proof necessary for the charged offense, and there is some evidence that would permit a jury to rationally find the defendant guilty only of the lesser offense. Constructive possession, which includes the knowing exercise of, or knowing power to exercise, dominion and control over contraband, can satisfy the possession element for a lesser included offense instruction.
Facts:
- On March 24, 1992, the Dallas Police Department executed a search warrant at 2423 Myers, apartment 202.
- When police entered the apartment, they found Roderick Porter along with three other individuals.
- Police observed numerous small baggies containing what appeared to be cocaine on a table in front of the couch where Porter was sitting.
- Officer J. Rivera testified that two of the suspects made movements towards nearby weapons upon entry, but Officer Eddie Fuller testified that Porter made no such movements and complied with orders.
- Approximately 167 grams of cocaine and a number of guns were seized from the apartment.
- Leon Evans, one of the suspects arrested at the scene, testified that Porter was present at the apartment only to purchase a “dime rock” of cocaine, not to sell it.
- Evans further testified that Porter had paid for a “dime rock” but had not yet received his cocaine when the police entered.
Procedural Posture:
- Roderick Porter and three other suspects were arrested and charged with possession with intent to deliver cocaine in an amount greater than twenty-eight grams but less than 200 grams.
- Porter pled not guilty to the charge.
- At trial, the jury convicted Porter of the lesser included offense of possession of a controlled substance (cocaine in an amount greater than twenty-eight grams but less than 200 grams), rather than possession with intent to deliver.
- Porter elected to have the trial court assess punishment, and the trial court assessed punishment at thirty years’ confinement.
- Porter appealed his conviction to the Court of Appeals of Texas, Dallas.
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Issue:
Does a trial court commit reversible error by refusing to instruct the jury on the lesser included offense of possession of less than twenty-eight grams of cocaine when there is some evidence that the defendant was in constructive possession of only a specific, smaller amount of cocaine, despite also being in the presence of a larger quantity?
Opinions:
Majority - McGARRY, Chief Justice
Yes, a trial court commits reversible error by refusing to instruct the jury on the lesser included offense of possession of less than twenty-eight grams of cocaine when there is some evidence that the defendant was in constructive possession of only a specific, smaller amount. The court first addressed Porter's challenge to the sufficiency of the evidence for his conviction. Applying the standard of review to determine if any rational trier of fact could have found the essential elements beyond a reasonable doubt, the court found sufficient “affirmative links” between Porter and the cocaine. These links included the cocaine being in plain view and close proximity to Porter, Porter's presence during the search warrant execution, the large amount of cocaine recovered, the presence of multiple guns and suspects in an apartment resembling a 'crackhouse,' impeached testimony from Leon Evans about Porter's involvement in selling, and the suspects' behavior before police entry. These factors, aggregated, were sufficient to permit a reasonable inference that Porter knew of and exercised control over the cocaine, thus overruling Porter's points of error regarding sufficiency of the evidence and motion for instructed verdict. However, the court then determined that the trial court erred in refusing to charge the jury on the lesser included offense of possession of less than twenty-eight grams. The court applied the two-prong test from Rousseau v. State: (1) the lesser offense is within the proof necessary for the charged offense (which both parties agreed upon), and (2) some evidence exists that would permit a jury rationally to find the defendant guilty only of the lesser offense. The State argued that because Porter had not physically taken custody of the “dime-rock,” he was not in possession of it. The court rejected this argument, noting that Texas law recognizes both actual and constructive possession. Adopting the Fifth Circuit’s definition, 'constructive possession' means the knowing exercise of, or knowing power to exercise, dominion and control over contraband, including ownership. Since Evans testified that Porter had handed money to Evans as payment for a rock, this constituted 'some evidence' that ownership had passed or that Porter had the power to exercise control over a rock. Therefore, a jury could rationally have found Porter in constructive possession of only a dime-rock (less than twenty-eight grams). Because Porter timely requested the instruction, and its denial likely harmed him by depriving the jury of a rational option, reversal was required under Almanza v. State.
Analysis:
This case clarifies the application of the 'affirmative links' doctrine for establishing possession of controlled substances when the accused is not in exclusive control of the premises. More significantly, it expands the concept of 'possession' for the purpose of a lesser included offense instruction, particularly through its adoption of the Fifth Circuit's definition of 'constructive possession.' By concluding that payment for contraband or the 'power to exercise control' over it constitutes sufficient evidence for constructive possession, the court lowers the threshold for when a lesser included offense instruction must be given. This decision ensures that juries are presented with all rationally supported legal options, potentially leading to more nuanced verdicts in drug possession cases and highlighting the importance of even minor testimonial details regarding a defendant's intent to purchase a specific, smaller quantity.
