Bentley v. State

• Decision Date: 12 March 1975
• Docket Number: No. 49518,49518
• Citation: 520 S.W.2d 390
• Court: Texas Court of Criminal Appeals
• Parties: David Myron BENTLEY, Appellant, v. The STATE of Texas, Appellee.

Page 390

520 S.W.2d 390

David Myron BENTLEY, Appellant, v. The STATE of Texas, Appellee.

No. 49518.

Court of Criminal Appeals of Texas.

March 12, 1975.

Rehearing Denied April 9, 1975.

Ernesto Valdes, Houston, for appellant.

Robert J. Seerden, Dist. Atty., and Norman D. Jones, Asst. Dist. Atty., Victoria, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

The appellant brings this appeal from a conviction for possession of marihuana over four ounces. The jury returned a guilty verdict and assessed punishment at four (4) years' confinement in the Texas Department of Corrections.

The appellant urges three grounds of error.

In his first ground of error the appellant challenges the sufficiency of the evidence to sustain the conviction, contending that the testimony of the accomplice witnesses was not corroborated as required by Article 38.14, Vernon's Ann.C.C.P. ¹ The appellant urges that the trial court erred in overruling his motion for instructed verdict.

The record reflects that Victoria City Police Officers executed a search warrant on October 20, 1973, at a residence where Randall Boyd Phillips lived in the City of Victoria. The police officers observed someone 'peek' out of a bedroom window on the northeast corner of the residence as they approached. When they received no response from within the residence to their knocks and announcements of 'Police' and 'Search Warrant,' the officers entered the unlocked front door. Confronting Phillips' mother and sister in the living room, the officers identified themselves and one of them read the search warrant to the two women. Since while outside the residence they had observed, through a window, some activity in the northeast bedroom, the remaining officers proceeded to that bedroom and found the appellant Bentley Phillips, Gayle Butler, Mitchell Duerfeldt, Richard Gamblin and Polly Laughumn sitting in a circular arrangement on the floor. The room was full of marihuana smoke, and most of the people appeared to be intoxicated from either drugs or alcohol. The appellant and one other person were playing guitars when the officers entered the bedroom. The officers identified themselves, announced that they had a search warrant, and read the suspects the Miranda warnings. During the reading of the warnings, the appellant, who appeared intoxicated and had bloodshot eyes, continued to 'strum' on his guitar and made loud, boisterous and vulgar remarks to the police. A box located on the floor in the middle of the circle contained twenty-five (25) butts or 'roaches' later proved to contain marihuana. A search of a dresser located in the bedroom revealed one hundred (100) sandwich sized 'baggies' of marihuana, whose contents amounted to approximately eighty (80) ounces in weight.

Randall Phillips testified that a week prior to the execution of the search warrant by the police he and Gayle Butler had traveled to Houston to visit the appellant at his new apartment, but were unable to find the address and spent the night in Rosenberg. Phillips and Butler returned to Victoria the next day, and the appellant brought some marihuana to Phillips' house to be 'cut into lids.' The appellant requested that Phillips keep the marihuana and advised him that one Dickie St. Julien would come by the residence to pick up ten 'lids' at a time. Phillips agreed to keep the marihuana for the appellant, apparently to discharge a $600.00 debt owed him from an earlier transaction where the appellant had 'brought something down' and Phillips had distributed it to other people to sell and had not recovered the money. The appellant, Phillips, Gayle Butler and Mitchell Duerfeldt 'cut' the marihuana, and it was placed in the attic at Phillips' home. Phillips further testified that Dickie St. Julien had come by his house on four or five separate occasions prior to the police raid to pick up ten 'lids' as the appellant had said he would, and had paid Phillips $100.00 on each occasion except for the Friday of the raid. On the day of the raid the appellant and Phillips took the marihuana out of the attic and placed it in the dresser where it was subsequently found. That evening, Phillips and Duerfeldt picked up the appellant and they drove around drinking beer and smoking a joint, after which they went to Phillips' house. At the house the appellant, Phillips, Gayle Butler and others took a 'quayline' prior to the officers' arrival.

Gayle Butler generally corroborated Phillips' testimony.

Mitchell Duerfeldt testified that he had helped 'cut' the marihuana at Phillips' house on the Sunday prior to the raid. He further testified that he helped put the marihuana into 'baggies' and got one 'lid' from the appellant as compensation for his help. Duerfeldt also stated that he did not know what happened to the marihuana after it was bagged, nor was he aware that the one hundred 'baggies' of marihuana were in the dresser on the night of the raid.

The appellant offered no evidence at the guilt-innocence stage of the trial.

The court instructed the jury on the law of principals, joint possession and accomplice testimony, charging that Randall Phillips and Gayle Butler were accomplices as a matter of law and submitting the issue of whether or not Mitchell Duerfeldt was an accomplice witness as a fact issue for the jury to resolve.

In Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968), this court stated:

'The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.'

The mere showing that an offense occurred is not sufficient corroboration. Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test. Perkins v. State, 450 S.W.2d 855 (Tex.Cr.App.1970); Windham v. State, supra; Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Raynolds v. State, supra; Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966); it need only make the accomplice's testimony more likely than not. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

The possession of narcotics ² need not be exclusive. Collini v. State, 487 S.W.2d 132 (Tex.Cr.App.1972). Evidence which shows that the contraband is jointly possessed by the accused with another is sufficient. Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Valdez v. State, 481 S.W.2d 904 (Tex.Cr.App.1972); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1971). Where joint possession is involved, the State must link the accused to the narcotic by introducing evidence of facts and circumstances which show both knowledge of the narcotic and the exercise of control over it. Mitchell v. State, 517 S.W.2d 282 (Tex.Cr.App.1974); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974); Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974); Wright v. State, 500 S.W.2d 170 (Tex.Cr.App.1973); Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973).

In the instant case the non-accomplice testimony (also excluding that of the witness Mitchell Duerfeldt for reasons that shall be obvious later) reveals that the police, acting upon an informer's tip and after securing a search warrant, entered the residence where the co-defendant Phillips lived and arrested appellant, apparently...