Armstrong v. State

• Decision Date: 07 July 1976
• Docket Number: No. 51509,51509
• Court: Texas Court of Criminal Appeals
• Parties: Warren W. ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

Page 119

542 S.W.2d 119

Warren W. ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 51509.

Court of Criminal Appeals of Texas.

July 7, 1976.

Leave to File State's Motion for

Rehearing Denied Oct. 20, 1976.

Chagra & Chagra, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of marihuana. Punishment was assessed at six years.

Initially, appellant challenges the sufficiency of the evidence. Second, he asserts the trial court erred in refusing his requested charge on circumstantial evidence.

Evidence heard on the motion to suppress reveals that at approximately 11:30 a.m. on October 7, 1970, Officer Gomez of the El Paso Police Department received information from a confidential informant that a shipment of marihuana loaded in four suitcases would shortly be taken out of El Paso by airplane. The airplane and its location were described.

Evidence received before the jury reveals that Officer Aguirre of the El Paso Police Department received a radio call on the morning of October 7, 1970, directing him to the Southwest Air Rangers area of the El Paso Airport. He arrived and commenced surveillance of the airplane approximately at noon. No one was present for the first forty minutes of observation. Appellant then arrived and went to the airplane. He began preparing the plane for service, walked to the Southwest Air Rangers building briefly, and then returned to the plane.

Ten minutes later a taxi arrived with Richard Watson and four suitcases. Watson and appellant each carried two suitcases to the plane and placed them in the cargo section. Both boarded and appellant started the engines. Officer Aguirre and other officers on the scene surrounded the plane with their vehicles. Aguirre jumped on the wing on the pilot's side and ordered appellant to stop the engines, which he did. The officers then boarded the plane and removed the four suitcases, which were found to contain marihuana.

The interior of the plane had two seats forward, one for the pilot, and the area behind these seats had been adapted for carrying cargo. Four 'roaches' (marihuana cigarette butts) were found in closed ashtrays located in the cargo area, and an officer testified that he knew the smell of marihuana and could smell the marihuana that was in the suitcases when he boarded the plane.

Appellant testified that he was a flying subcontractor for a company that handled explosives, and that he was staying in El Paso briefly for refueling and instrument repairs. He was en route to California without a cargo to have other repairs performed and to pick up a cargo to carry back to the east coast. He testified he met Watson in El Paso and agreed to provide him passage on his plane to California at rates in the usual range for private charters. He also testified that his plane was left unlocked in the location where it was parked, so the repairman could get in when he was not there.

The State had filed two motions for continuance, alleging in each that Watson was not then available and:

'The testimony of this witness is believed by the Applicant to be material for the State, as shown by the fact that it is expected said witness will establish the following facts: That the defendant WARREN ARMSTRONG knew that the suitcases involved in the above cause contained a substance believed to be marijuana, and therefore will link the defendant with the marijuana establishing his knowledge and control thereof.'

The record also reflects that Watson was present and available to testify for the State but that he was not called to testify. The State presented no evidence inconsistent with appellant's testimony.

In sum, the State's evidence against appellant consisted of this: (1) appellant was seen carrying two of Watson's suitcases from the taxi to the plane; (2) the trained officer could smell the marihuana in the suitcases in the plane; (3) four 'roaches' were found in closed ashtrays in the cargo area of the plane.

The strength of the first item is diminished by uncontradicted evidence that the suitcases did not appear unusual or reveal their contents. The strength of the second is diminished by several factors. The officer testified that he could recognize the smell of marihuana because 'I have been working narcotics for fifteen years and I can pretty well detect the smell of marihuana,' whereas appellant was not shown to know the smell of marihuana and may not be presumed to have such expert knowledge. ¹ Finally, the third item is diminished in strength by the unrefuted testimony that others had access to the plane during appellant's absence and the State's evidence that there was no smell of burning marihuana and that the ashtrays were closed. All were weakened by the State's failure to call Watson. ² Cf. Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305.

In Powell v. State, Tex.Cr.App., 502 S.W.2d 705, it was held:

'When an accused is charged with the unlawful possession of a narcotic or dangerous drug, two elements must be proven: (1) that he exercised care, control, and management over the contraband; and (2) that he knew the object he possessed was contraband. (citations omitted) The evidence must affirmatively link the accused to the narcotics in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the narcotic's existence and of its whereabouts.'

With respect to the suitcases, the evidence is insufficient to show that appellant knew they contained marihuana. The mere fact that he assisted his paying passenger in carrying the suitcases to the airplane is not sufficient to support a finding of knowledge any more than it would have been sufficient to support such a finding with respect to the taxi driver who assisted in placing the suitcases in the taxi. The State was bound to show independent circumstances linking the accused to the marihuana, and it showed none. By contrast, in Powell v. State, supra, the following was shown:

'. . . (1) three people were seen at the Powell ranch where the airplane and the pickup met; (2) the three people appeared to be unloading bundles from the plane into the back of the pickup; (3) one person took off in the airplane and two people left in the pickup and were later found in it when it was stopped on the highway; (4) appellant was in the pickup after it was stopped; (5) a small quantity of marihuana was found on appellant's person; (6) there was testimony that appellant appeared to be under the influence of narcotics at the time of arrest. . . .'

With respect to the roaches found inside the airplane, we note that the ashtrays containing the roaches were located in the common cargo area of the plane, and that there was undisputed testimony that others, including one or more repairmen, had had access to the airplane for several days immediately preceding the day of appellant's arrest, and at times when appellant was not present. Hence, appellant had not been in exclusive possession of the airplane.

In Higgins v. State, Tex.Cr.App., 515 S.W.2d 268, 270, we said:

'Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the narcotic and control over it unless there are additional independent facts and circumstances which link the accused to the narcotic.'

Accord, Hernandez v. State, Tex.Cr.App., 517 S.W.2d 782.

The State showed no additional circumstances linking the accused to the contraband in the closed ashtrays. The evidence was insufficient with respect to either knowledge or control of the roaches. We are unable to find any case holding the evidence sufficient upon so sparse a record as this. For the sort of additional linking circumstances that may be sufficient to support a conviction, see Brooks v. State, Tex.Cr.App., 529 S.W.2d 535; Cranfil v. State, Tex.Cr.App., 525 S.W.2d 518; Williams v. State, Tex.Cr.App., 524 S.W.2d 705; and Curtis v. State, Tex.Cr.App., 519 S.W.2d 883.

For similar reasons, the trial court also erred in refusing the requested circumstantial evidence charge. In Ramos v. State, 478 S.W.2d 102, 105, this Court stated:

'The distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proven.'

In the instant case, as in Ramos v. State, supra, no witness saw appellant exercise control over the contraband in such a manner that knowledge of the marihuana was shown. The contraband in the ashtrays was not in a place where appellant had sole access to it. Cf. Harris v. State, Tex.Cr.App., 486 S.W.2d 88. Therefore, there was no direct evidence that appellant Knowingly possessed any of the marihuana. Instead, there were only the minor facts that appellant carried two suitcases containing marihuana and that marihuana roaches were found in closed ashtrays inside his airplane. Therefore, the trial court erred in refusing the requested charge on circumstantial evidence. Draper v. State, Tex.Cr.App., 513 S.W.2d 563; Selman v. State, Tex.Cr.App., 505 S.W.2d 255; Crawford v. State, Tex.Cr.App., 502 S.W.2d 768; Ramos v. State, supra.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge (dissenting).

The majority reverses this conviction on the grounds that the evidence is insufficient to support the conviction.

Officer Juan F. Aguirre testified that four suitcases were carried by Watson and appellant from the taxicab to the plane. When the cab driver offered to help carry the bags appellant said that Watson did not need any help. Officer Al Castro testified that the seats were removed from the passenger area of the plane. In the two ashtrays behind the...