Barnes v. State, 46830
| Decision Date | 09 January 1974 |
| Docket Number | No. 46830,46830 |
| Citation | 504 S.W.2d 450 |
| Parties | David Lee BARNES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Fred Bruner, Roy L. Merrill, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
Appellant was convicted in a trial before the court of possession of a narcotic drug to-wit: marihuana; punishment was assessed at two (2) years confinement.
Appellant contends in his second ground of error 'that the evidence is insufficient to support a finding of guilty in the court's verdict.'
After receiving information from a reliable and credible informer, Officers Shinpaugh and Taylor of the Dallas Police Department obtained a search warrant at 12:20 P.M. on March 19, 1970. This warrant authorized the search of Apartment L located in the apartment complex having the address of 5707 Gaston Avenue, Dallas, and being under the control of appellant, David Lee Barnes.
Officer Norman testified that he and several other officers executed the aforementioned warrant on March 20, 1970. After arriving at the apartment complex, the officers went first to the apartment manager, identified themselves as police officers and requested a key to appellant's apartment. The manager gave the officers the key and they proceeded to appellant's apartment. The door to the apartment was located near a front window of the apartment, and Officer Taylor stated that an individual looked out of the curtains at them. Immediately thereafter the officers entered the apartment. The testimony of the officers was conflicting as to whether the entry was made by use of the apartment key or by merely turning the door handle of the apartment, although testimony of Taylor placed in evidence by appellant was that the key to the apartment given them by the clerk was used in entering it. It is clear from the record that the officers entered the apartment immediately after the man looked out of the curtain.
After entering the apartment the officers identified themselves, and in order to conduct a systematic search of the premises, they ordered the five occupants, one of whom was appellant, who were in the dining room into the living room. As a result of the search one bag of marihuana seeds hidden inside a box in the kitchen cabinets was found. Also cigarette papers and an unspecified amount of refined marihuana was found in the inside pocket of a coat hanging in the closet in the dining room.
Officer Taylor testified that this was the residence of appellant and that to the best of his knowledge appellant was living in and occupying the premises searched. Taylor further stated that all five occupants were in proximity to the dining room when they executed the search and that they appeared to be playing cards. No one attempted to flee and the officers encountered no interference while they were effectuating the arrest.
Viewing the evidence in the light most favorable to the State, we find that appellant was living in the apartment as his residence, and that he, with several other persons, was present when the contraband was found in the apartment, that there was no evidence that anyone was living there other than appellant, and that marihuana was found 'hidden' inside a rice or oatmeal box in the cabinet in the kitchen, as well as some marihuana in a pocket of a coat in the closet in the dining room.
Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the narcotic and control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the narcotic. Wright v. State, Tex.Cr.App.,500 S.W.2d 170; Williams v. State, Tex.Cr.App., 498 S.W.2d 340; Collini v. State, Tex.Cr.App., 487 S.W.2d 132; Harvey v. State, Tex.Cr.App., 487 S.W.2d 75.
Wright v. State, supra, is not controlling of the facts and circumstances in the instant case. In Wright, appellant had leased the premises the day before the raid, he was not present during the search, and it was not shown that he had been in or occupied the premises after it was leased. Two others present at the time of the search were shown to have been occupying the premises, and the narcotics were contained in an unidentified shirt pocket hanging in the clothes closet. The court held that this combination of circumstances was sufficient only to cast suspicion on the defendant, but was insufficient to show the required possession. Also, the court held that the evidence was insufficient to show that the substance recovered was methamphetamine, for the possession of which the defendant was being prosecuted.
In Williams, supra, four other persons in addition to the defendant were staying in the trailer house that was searched, and the defendant was not shown to be in sufficient proximity to the narcotics, and no evidence other than the fact that the utility bills were in his name and appellant's presence was introduced to show he occupied the premises.
Collini v. State, supra, was reversed because the evidence did not connect the defendant with heroin found outside the house where the defendant had a room.
In the instant case, appellant occupied the premises as his residence, and was present during the search. When the officers asked the manager for a key to appellant's apartment he gave them such key, and the key he gave them fit the door to the apartment. There was no evidence that any of the others exercised any sort of control over the apartment, or that they were present in any capacity other than guests. The officers entered the apartment immediately after one of the men inside discovered them, and there was no opportunity for those inside to hide anything. Although there may be some question as to a sufficient link connecting the marihuana in the unidentified coat pocket with appellant, there are additional facts are circumstances which affirmatively link the accused to the knowledge and possession of the marihuana found hidden inside a cereal box in the kitchen cabinet of app...
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