Bass v. State

• Decision Date: 12 March 1992
• Docket Number: No. B14-90-00905-CR,B14-90-00905-CR
• Citation: 830 S.W.2d 142
• Parties: Daniel Eugene BASS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.). Motion for Rehearing Overruled and Opinion of
• Court: Texas Court of Appeals

Page 142

830 S.W.2d 142

Daniel Eugene BASS, Appellant, v. The STATE of Texas, Appellee.

No. B14-90-00905-CR.

Court of Appeals of Texas Houston (14th Dist.).

Motion for Rehearing Overruled and Opinion of March 12, 1992 Withdrawn.

Affirmed and Opinion on Rehearing filed May 7, 1992.

Rehearing Denied June 4, 1992.

Richard G. Baker, Liberty, for appellant.

Michael S. McNeely, Anahuac, for appellee.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION ON REHEARING

CANNON, Justice.

Appellant entered a plea of not guilty before a jury to the offenses of possession of a controlled substance, namely marihuana, and failure to pay the controlled substances tax. TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3); TEX. TAX CODE ANN. § 159.201(a). He was convicted of both offenses and the jury assessed punishment at imprisonment for fifteen years and one day for each offense. The jury also assessed a fine of $10,000.00 for the offense of possession of a controlled substance. Appellant raises seven points of error. We affirm.

In the early morning hours of April 12, 1990, Officer Harvey Beasley of the Chambers County Sheriff's Department was on routine patrol along Interstate 10. Officer Beasley was sitting in his parked patrol car on the eastbound side of I-10, when he observed a small compact car without a license plate. Officer Beasley stopped the car and the driver, later identified as Terry Wayne Ziglar (Terry), exited and walked toward the officer's vehicle. Officer Beasley observed two other occupants of the car; a man, later identified as Arthur Ziglar (Arthur), sitting in the front passenger seat, and a man, later identified as appellant, sitting in the backseat immediately behind the front passenger seat. According to Officer Beasley, Terry appeared extremely nervous. Terry stated that he was the owner of the car and that they were on the return leg of a trip from Mobile, Alabama to their father's house in Hempstead, Texas for the purpose of picking up his (Terry's) work clothes. Arthur confirmed Terry's story.

While interviewing Terry at the rear of the Ziglar car, Officer Beasley noticed that appellant "kept moving around and paying an extraordinary amount of attention to me." Officer Beasley then approached the passenger side of the car and shined his flashlight inside. At that time, he noticed a green clothing bag. It was later determined that the bag contained two or three pairs of blue jeans, a couple of shirts, and some underclothing. Officer Beasley motioned Arthur to roll down the window. When Arthur complied, Officer Beasley smelled the odor of raw marihuana. While talking to Arthur, Officer Beasley noticed that appellant was bent over so that he (Officer Beasley) could not see appellant's hands. For safety reasons, Officer Beasley admonished appellant to "sit up" and "be still." Officer Beasley also noticed that Arthur's hands were shaking, his speech was stammered, and he appeared extremely nervous.

Officer Beasley then walked over to Terry, who had remained standing at the rear of the car. He asked Terry if he had contraband in the car. When Terry answered in the negative, Officer Beasley asked and received permission to search the car. He requested Arthur and appellant to step from the car. Officer Beasley noticed that appellant's hands were shaking, he was shifting his feet, and he appeared extremely nervous. After conducting a pat-down search for weapons, Officer Beasley told Arthur and appellant to stand next to Terry. Officer Beasley first searched the console and the glove box. Next, he looked under the front passenger seat where he found a clear plastic bag containing an open, brown paper bag. According to Officer Beasley, the bag was located underneath the seat near the back one third of the seat on the left side. He pulled the bag from the front end of the seat and shined his flashlight which revealed a green leafy substance. The bag was later determined to contain 10.19 ounces of marihuana. Officer Beasley discontinued the search and announced to the three men that they were under arrest. At that point, the three men simultaneously "hung their heads" and "kind of slumped." Officer Beasley radioed for assistance and the men were then taken into custody.

In his first point of error, appellant contends that there is insufficient evidence that he knowingly possessed the marihuana. In reviewing the sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). This standard applies to both direct and circumstantial evidence cases. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1983).

Where an accused is charged with unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband; and (2) that the accused knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). Possession of contraband need not be exclusive, and evidence that shows the accused jointly possessed the contraband with another is sufficient. Id.; McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985); Rodriguez v. State, 635 S.W.2d 552, 553 (Tex.Crim.App. [Panel Op.] 1982). On the other hand, mere presence at a place where contraband is being used or possessed by others does not justify a finding of joint possession. Martin, 753 S.W.2d at 387; McGoldrick, 682 S.W.2d at 578.

To support a conviction for possessing a controlled substance, evidence must affirmatively link the accused to contraband in a manner, and to such an extent, that a reasonable inference may arise that the accused knew of the contraband's existence and whereabouts. Gallegos v. State, 776 S.W.2d 312, 314 (Tex.App.--Houston [1st Dist.] 1989, no pet.) (citing Martin, 753 S.W.2d at 387; Rodriguez, 635 S.W.2d at 553). The link can be circumstantial if the evidence excludes every other reasonable hypothesis except the guilt of the accused. Castro v. State, No. 835-90, 1992 WL 1131 (Tex.Crim.App., January 8, 1992) (not yet reported); Humason v. State, 728 S.W.2d 363, 365 (Tex.Crim.App.1987); Winter v. State, 725 S.W.2d 728, 731 (Tex.App.--Houston [1st Dist.] 1986, no pet.). Proof which amounts only to strong suspicion or mere probability is insufficient to support a conviction. Humason, 728 S.W.2d at 365. This does not mean that if evidence is presented at trial suggesting innocence, the jury cannot find the defendant guilty. Castro, slip op. at 3. Juries are charged with the responsibility of resolving factual questions and may reject evidence and testimony which suggests innocence. Id. "The rule that evidence must exclude every reasonable hypothesis of innocence refers to evidence which the jury believes and relies upon to support its verdict." Id. (quoting State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752, 756 (1990)).

We find several affirmative links connecting appellant to the contraband. First, there was a strong odor of raw marihuana emanating from the car. See Duff v. State, 546 S.W.2d 283, 287 (Tex.Crim.App.1977); See also Gallegos, 776 S.W.2d at 314. Second, as Officer Beasley questioned the Ziglars, appellant made furtive gestures toward the contraband. See Winter, 725 S.W.2d at 731. Third, appellant became extremely nervous when Officer Beasley asked him to step from the car so that he could search the vehicle. Fourth, the 10.19 ounces of marihuana was found under the back one-third of the passenger seat, in close proximity to where appellant was sitting and readily accessible to him. See Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.1981); See also Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.--Dallas 1982, pet. ref'd). Fifth, appellant hung his head when informed that he was under arrest for possession of contraband. See Gallegos, 776 S.W.2d at 313. That appellant was nervous in the presence of a police officer and hung his head when told he was under arrest do not by themselves imply guilt. When viewed with the other facts, however, the jury could infer that appellant had knowledge and control of the contraband. See Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App.1984).

Appellant presents two alternative hypotheses with respect to his knowledge of the contraband. The first, that he was completely unaware of the contraband, had fallen asleep in the backseat and was attempting to tie or put on his shoes during Officer Beasley's stop. Appellant's second hypothesis is identical to the first except that under this scenario he learned of the contraband just moments after Officer Beasley's stop, thus, "limiting his options." The only evidence in support of those theories was that there was a pillow in the backseat of the car. In weighing the sufficiency of circumstantial evidence, an appellate court is not required to exclude every reasonable hypothesis concerning an accused's intent. Matson v. State, 819 S.W.2d 839, 845-46 (Tex.Crim.App.1991). Rather, "a reviewing court ... faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Matson 819 S.W.2d at 846; Farris v. State, 819 S.W.2d 490, 495 (Tex.Crim.App.) (quoting Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. at 2793). Here, the jury rationally rejected the theories offered by appellant. Viewing the evidence in the light most favorable to the prosecution, we hold that the jury could find the essential elements of the crime beyond a reasonable doubt. We overrule appellant's first point of error.

In his second point of error, appellant...