IN THE

TENTH COURT OF APPEALS

No. 10-98-197-CR

     JESSE ROLAND FLORES,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 218th District Court

Atascosa County, Texas

Trial Court # 94-01-0038-CRA

O P I N I O N

      Appellant Flores appeals his conviction for possession of cocaine (less than 18 grams), enhanced by one prior felony conviction, for which he was sentenced to fifty years in the Institutional Division of the Texas Department of Criminal Justice.

      On July 14, 1993, DPS Trooper Bernhardt and Trooper Quinney, a drug-dog handler, stopped a vehicle for speeding. Appellant was a front-seat passenger. Quinney received consent to search the vehicle from the driver, Luis Marquez. During the search Quinney’s dog “alerted” to the seat where Appellant had been sitting. At the same time DPS Officer Bernhardt, told Quinney that Appellant had outstanding warrants for his arrest. Quinney told appellant that he was going to be arrested for the warrants and that the “drug dog” had alerted to his car seat.

      Appellant then fled with Quinney in pursuit. After a short chase Appellant turned to face Quinney. As Quinney prepared to grab Appellant a handgun fell to the ground behind and between Appellant’s legs. Appellant then retrieved a bag of white powder from the small of his back and scattered it on the ground. Officers Bernhardt and Quinney subdued Appellant and Bernhardt gathered as much of the powder from the ground as he could. DPS Chemist Thain testified that Bernhardt had recovered 1.04 grams of cocaine.

      Appellant was convicted of possession of cocaine, enhanced by one prior felony conviction. Other facts will be noted in discussing Appellants points of error. By new counsel he appeals on two points.

      Point 1: Appellant was denied effective assistance of counsel as required by the United States and Texas Constitutions.

      Specifically, Appellant complains that he did not receive effective assistance of counsel at the guilt-innocence phase of the trial because his trial attorney failed to: (1) request a mistake-of-fact instruction in the jury charge; (2) adequately investigate the facts of the case prior to trial; and (3) call a witness crucial to Appellant’s defense. These complaints have not been presented to the trial court.

      Appellant’s complaints are barred by Rule 33.1(a) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 33.1(a). This Rule provides that as a prerequisite to presenting a complaint for appellate review, the record must show: (1) a timely request, objection, or motion made to the trial court stating the grounds for the complaint; and (2) a ruling on the request, objection or motion, or a refusal to rule, coupled with an objection to such refusal. Applying the clear language of the Rule, we find that Appellant’s complaints have not been preserved for our review. Gonzales v. State, No.10-98-268-CR, 1999 Tex. App. (Waco June 9, 1999, no pet.).

      Because the complaints were not presented to the trial court we overrule Point 1.

      Point 2: The jury’s verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

      Specifically, Appellant complains that the evidence is factually insufficient to sustain his conviction. When reviewing the legal sufficiency of the evidence, we must examine all the evidence to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Criner v. State, 860 S.W.2d 84, 86 (Tex. Crim. App. 1992). In making this examination we view the evidence in the light most favorable to the verdict. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). If there is any evidence that establishes guilt beyond a reasonable doubt, the conviction is not subject to reversal. Anderson v. State, 871 S.W.2d 900, 902 (Tex. App.—Houston [1st Dist.] 1994, no pet.)

      In reviewing the factual sufficiency of the evidence we view all the evidence without the prism, “in the light most favorable to the prosecution.” Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Thus, the reviewing court may consider the testimony of defense witnesses. Clewis at 135. However, even under a factual sufficiency analysis, the reviewing court is not authorized to substitute its judgment for that of the factfinder. Clewis at 133. The reviewing court sets aside the verdict “only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis at 135. A clearly wrong and unjust verdict may occur in instances where the jury’s verdict “shocks the conscience” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

      It is undisputed that Appellant possessed cocaine. He testified that he thought it was an innocent and legal vitamin for use with fighting roosters.

      The State must prove that: (1) Appellant exercised control over the contraband and (2) Appellant knew that the substance in his possession was contraband. King v. State, 875 S.W.2d 701, 703 (Tex. Crim. App. 1995).

      The evidence shows that Appellant possessed the substance, attempted to dispose of it after the traffic stop, and that the substance he possessed was cocaine.

      The facts established in the record are: (1) Appellant had a prior murder conviction, thus casting doubt on his credibility; (2) he served fourteen years in prison, demonstrating his exposure to the knowledge and ways of the criminal; (3) his prior knowledge of how cocaine appears and is packaged shows he is familiar with and knowledgeable about illegal drugs; (4) his possession of a handgun, though a convicted felon, shows his willingness to violate the law; (5) his hiding of the cocaine in the small of his back shows his fear of it being discovered; (6) his flight from Officer Quinney; and (7) his scattering the powder on the ground shows that he knew what he had was an illegal substance. The evidence also disclosed that Luis Marquez, from whom Appellant received the cocaine, had a daily habit and that his wife, Dianna Marquez, who was the rear-seat passenger, was on probation for possession of cocaine, and also that she had a handgun in her purse.

      All of Appellants acts are consistent with that of a person with guilty knowledge. The jury was entitled to believe that Appellant had knowledge that the substance in his possession was cocaine. The verdict is not contrary to the overwhelming weight of the evidence and is not clearly wrong or unjust. The evidence is factually sufficient to sustain the conviction.

      Point 2 is overruled. The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Justice Vance,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 14, 1999

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