Reversed and Rendered and Opinion filed October 29, 2015.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-14-00700-CR

                     GEORGE NEAL WILLIAMS, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 338th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1425992

                                  OPINION
      Appellant appeals his conviction for possession of less than one gram of
cocaine. In a single issue appellant argues the evidence is insufficient to support his
conviction for knowing possession of cocaine. Finding the evidence insufficient to
show that appellant knew the substance was cocaine, we reverse and render judgment
of acquittal.
                                    BACKGROUND

      At approximately 3:30 on the morning of the incident forming the basis of
appellant’s arrest, Houston Police Department Officer Zachary Mercer was
dispatched to Midtown Spa to investigate a suspicious event. When Mercer exited his
patrol vehicle he heard a loud banging noise from behind the business. Mercer
jumped over a fence to investigate the noise. Mercer’s partner, Officer Aaron King,
saw appellant behind the business establishment. King called Mercer over, and they
both observed appellant sitting on the ground next to an air conditioner unit. Mercer
testified that appellant was not wearing a shirt and was “sweating profusely.”

      King conducted a pat-down search of appellant for officer safety. In appellant’s
front pants pocket King discovered a pocketknife and a crack pipe. Mercer conducted
a field test on the pipe swabbing the inside of the pipe for any residue. The swab
turned blue, which is a positive reaction for cocaine. As part of standard procedure,
the field test was discarded after the pipe was seized. On cross-examination Mercer
testified he did not know whether appellant knew there were any controlled
substances in the pipe.

      Officer King also testified to the events that surrounded appellant’s arrest. King
testified that when they saw appellant sitting by the air conditioner he “was sweating,
and he was just kind of sitting there looking up at me.” King described the weather as
cool that morning. King asked appellant what he was doing in that location, and
appellant replied that he was homeless and looking for a place to sleep. King detained
appellant for possible trespassing, handcuffed him, and conducted a pat-down search
for weapons. King discovered a pocketknife and the crack pipe in appellant’s front
pants pocket. King also testified that he did not know whether appellant knew
anything was inside the pipe.

      A chemist with the Houston Forensic Science Center testified that she
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conducted two different tests on the crack pipe. Both tests revealed that the pipe
contained less than one gram of cocaine. The chemist testified that the weight of the
substance was a “trace amount.” She defined trace amount as “a residue amount,
something that’s adhering to its container and you’re unable to weigh it.” When asked
whether the cocaine was visible, the chemist testified that she scraped or swabbed the
inside of the pipe and was able to conclude it was cocaine “without being able to
physically see it.” The pipe is not clear so the residue was not visible to the naked
eye.

       At the conclusion of the State’s evidence appellant moved for an instructed
verdict of not guilty on the grounds that the evidence was insufficient to show
appellant knowingly possessed cocaine. The trial court denied appellant’s motion.

                           SUFFICIENCY OF THE EVIDENCE

       In a single issue appellant argues the evidence is insufficient to show appellant
knowingly possessed cocaine. Because the quantity of the substance was so small it
could not be seen, weighed, or measured, there is no evidence that appellant
knowingly possessed a controlled substance.

       When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
Although we consider all evidence presented at trial, we do not reevaluate the weight
and credibility of the evidence or substitute our judgment for that of the fact finder.
See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury
is the sole judge of the credibility of witnesses and of the weight given to their
testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the
verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
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      To support a conviction for possession of a controlled substance, the State must
prove: (1) that appellant exercised actual care, control and management over the
contraband; and (2) that appellant had knowledge that the substance in his possession
was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Tex.
Health & Safety Code Ann. § 481.115 (West 2010). The issue is whether the
evidence will support a reasonable inference that the defendant knowingly possessed
the contraband. Jackson v. State, 807 S.W.2d 387, 389 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d).

      In this case, appellant challenges the sufficiency of the evidence to prove that
he had knowledge that the substance in his possession was contraband. In Shults v.
State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979), the Texas Court of Criminal
Appeals held that “when the quantity of a substance possessed is so small that it
cannot be measured, there must be evidence other than mere possession to prove that
the defendant knew the substance in his possession was a controlled substance.” Id.
Therefore, the State must prove, through other evidence, that appellant had
knowledge that the substance in his possession was cocaine. King, 895 S.W.2d at
703. In King, the residue containing the cocaine was visible on the crack pipe, but the
amount of cocaine was unmeasurable and unweighable. King, 895 S.W.2d at 704.
The evidence also showed the appellant in King appeared to be intoxicated and the
stem of the pipe was still moist with what appeared to be saliva, which showed that
the pipe-smoking was probably in the very recent past. Id. The Court of Criminal
Appeals held the evidence legally sufficient to sustain the conviction. Id.

      The State cites several cases in which the Court of Criminal Appeals and this
court found sufficient evidence of knowing possession when the quantity of cocaine
was unmeasurable. In each of those cases, however, there was other evidence to show
that the defendant knew that he possessed a controlled substance. See Joseph v. State,

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897 S.W.2d 374, 376 (Tex. Crim. App. 1995) (defendant found in house “commonly
used as a haven for drug users” holding a syringe containing cocaine in a manner that
indicated he was “about to insert, or had just removed, a hypodermic needle from his
arm.”); King v. State, 895 S.W.2d at 703–04 (cocaine was visible, pipe was damp
with saliva, and defendant displayed evidence of intoxication); Caballero v. State,
881 S.W.2d 745, 748 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (cocaine was
visible and measurable); Chavez v. State, 768 S.W.2d 366, 367–68 (Tex. App.—
Houston [14th Dist.] 1989, pet. ref’d) (baggie containing 1.7 milligrams of cocaine,
which was visible and measurable, found in appellant’s pants pocket).

      In this case, it is undisputed that the cocaine could not be seen, weighed, or
measured. The only evidence of appellant’s potential “intoxication” was that he was
sweating on a cool night. Both officers testified that they did not know whether
appellant knew the substance he possessed was cocaine. There was no indication that
appellant had recently used the pipe or knew of its purpose as a crack pipe. The State
proved only that appellant possessed a crack pipe, but did not prove that appellant
knowingly possessed cocaine. Because the State failed to prove an essential element
of the offense, the evidence is insufficient to support appellant’s conviction. See
Shults, 575 S.W.2d at 30.

      We reverse the trial court’s judgment and render a judgment of acquittal.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Publish — Tex. R. App. P. 47.2(b).

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