                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-11-00045-CR


LANA CAY MANN A/K/A LANA                                         APPELLANT
MANN WATSON A/K/A LANA CAY
WATSON

                                      V.

THE STATE OF TEXAS                                                    STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1

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      A jury convicted Appellant Lana Cay Mann, also known as Lana Mann

Watson and Lana Cay Watson, of possession of more than four but less than

200 grams of methamphetamine and assessed her punishment as a habitual

offender at ninety-nine years’ incarceration.   The trial court sentenced her


      1
      See Tex. R. App. P. 47.4.
accordingly. Appellant brings a single issue on appeal, arguing that the trial court

reversibly erred when it denied her motion for a mistrial on two occasions during

the State’s final argument. Because the trial court committed no reversible error,

we affirm the trial court’s judgment.

      During the guilt phase of the trial, the State argued in connection with the

law of parties that “[Appellant] does not have to know the amount of

methamphetamine in order to be charged.” Appellant objected that the State had

misstated the law. The trial court sustained Appellant’s objection and instructed

the jury to disregard the prosecutor’s statement, but it denied Appellant’s motion

for mistrial. The prosecutor again argued, “I’m not required to prove that that

person knew it was over four grams.” Appellant again objected. The trial court

again sustained the objection and instructed the jury to disregard, but it denied

Appellant’s motion for mistrial.

      The State argues forfeiture, that the prosecutor’s statements were not

improper, and that any error was harmless because of the trial court’s prompt

instructions. In arguing forfeiture, the State contends that the prosecutor argued

for yet a third time that the State did not have to prove that Appellant knew the

amount of methamphetamine she possessed under the law of parties was over

four grams, and Appellant did not object. The State argues that because the




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objected-to statement came in at a later time without objection, Appellant has not

preserved her complaint for appellate review.2

      But our review of the record reveals that although the third argument was

similar, the prosecutor heeded the trial court’s prior ruling and changed the

argument slightly: “And so however much they had, whether it was less than a

gram, over a gram, over four grams, over 200 grams, she would be responsible

for whatever that is.” We hold that this argument was not the same argument to

which Appellant had objected.        Consequently, Appellant’s complaint was

preserved.

      The State also argues that the objected-to argument was not improper

because the State was not required to prove that Appellant knew the exact

weight of the methamphetamine in her possession. The State is both correct and

incorrect. The State is correct in that it did not have to prove that Appellant

weighed the methamphetamine and knew exactly how much it weighed. But the

State was required to prove that Appellant knowingly or intentionally possessed

all the methamphetamine that, when weighed by the State, weighed over four

grams.

      In reinstating the conviction of a defendant for possession of an amount of

cocaine found in the syringe police saw him drop, the Texas Court of Criminal

Appeals held, “There is no requirement that one must possess a usable amount

      2
        See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez
v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).


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of a controlled substance in order to be convicted of unlawful possession of a

controlled substance. There is also no requirement that the substance be visible

to the naked eye.”3

      Similarly, in Hall v. State, Hall challenged his conviction for possession of

crack cocaine.4 The police had found a crack pipe containing “blackish burned

residue and specks of white powder on its inside surface.”5 “This material tested

positive for cocaine,” and was the sole amount relied on for Hall’s conviction.6

Hall contended that the evidence was “insufficient as a matter of law to prove that

the cocaine found inside the socket was visible or capable of being seen by the

naked eye so as to be knowingly possessed by him.”7 But our sister court relied

on the forensic chemist’s testimony that the amount of cocaine residue recovered

was 11.97 milligrams, about half the contents of a very small sugar packet, and

that “it would not be any problem to physically weigh out this amount.” 8 The

Fourteenth Court also relied on its own precedent to hold that “[w]hile visibility is



      3
       Joseph v. State, 897 S.W.2d 374, 376 (Tex Crim. App. 1995) (citations
omitted).
      4
       928 S.W.2d 186, 189 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).
      5
       Id. at 188.
      6
       Id.
      7
       Id. at 189.
      8
       Id.


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a condition sufficient to establish knowing possession, it is not a necessary one.” 9

The court additionally relied on the fact that the drugs were found in a crack pipe

as evidence of knowing possession.10         These cases implicitly stand for the

proposition that if a defendant does not have to be able to see the contraband he

possesses to be convicted of its possession, he certainly does not have to know

its exact weight.

      But a person’s awareness that he possesses an illegal substance, no

matter how much, either personally or as a party, is an essential element of

possession under the law.11 For example, if seventeen-year-old Bill buys two six-

packs of beer but, knowing that he will have to share any beer he brings into the

house with sixteen-year-old Suzy, he leaves one six-pack in the trunk of his car,

Suzy intentionally or knowingly possesses only that beer that she is aware of.

This is true whether she possesses it personally or as a party. The law does not

require, however, that she know exactly how many ounces of beer she

possesses.

      9
       Id. (citing Caballero v. State, 881 S.W.2d 745, 748 (Tex. App.—Houston
[14th Dist.] 1994, no pet.)).
      10
          Id. at 190.
      11
         See Tex. Health & Safety Code Ann. §§ 481.102(6) (providing that
methamphetamine is in penalty group 1), .115(a) (requiring that person
knowingly or intentionally possess a penalty group 1 substance to commit an
offense) (West 2010); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.
2006); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (noting that
our law requires that an accused must have been “conscious of his connection
with [the illegal substance] and have known what it was”).


                                         5
      To recap, in the case at bar, the State did not have to prove that Appellant

had weighed the methamphetamine. The State also did not have to prove that

she knew exactly how much methamphetamine was stashed in the house. The

State did have to prove, however, that (1) either as a principal or as a party,

Appellant   intended   to   exercise   care,   custody,   and   control   over   the

methamphetamine that she was aware of and (2) the amount of the

methamphetamine met or exceeded the amount alleged in the indictment.12 We

therefore hold that the prosecutor’s argument was improper in part.

      When, as here, a trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether the

trial court abused its discretion by denying the mistrial.13     Only in extreme

circumstances, when the prejudice caused by the improper argument is

incurable—that is, “so prejudicial that expenditure of further time and expense

would be wasteful and futile,”—will a mistrial be required.14       In determining

whether a trial court abused its discretion by denying a mistrial, we balance three




      12
       See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a); Evans, 202
S.W.3d at 161; Brown, 911 S.W.2d at 747.
      13
        Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).
      14
        Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003), cert. denied, 542 U.S. 905 (2004).


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factors: (1) the severity of the misconduct; (2) curative measures; and (3) the

certainty of conviction absent the misconduct.15

      When Appellant objected to the improper jury argument, the trial court

sustained the objections and quickly instructed the jury to disregard. The trial

court correctly instructed the jury in the written jury charge and prevented

confusion by correcting the improper statements to which Appellant objected.

The law presumes that a jury will follow the trial court’s jury instructions. We

therefore hold that the trial court did not abuse its discretion by denying

Appellant’s requested mistrial.

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

LIVINGSTON, C.J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 17, 2012




      15
       Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).


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