Cranfil v. State, 49922

• Decision Date: 16 July 1975
• Docket Number: No. 49922,49922
• Parties: Ricky Scot CRANFIL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 518

525 S.W.2d 518

Ricky Scot CRANFIL, Appellant, v. The STATE of Texas, Appellee.

No. 49922.

Court of Criminal Appeals of Texas.

July 16, 1975.

Bob Hanna, Abilene, for appellant.

Ed Paynter, Dist. Atty., James H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for knowingly and intentionally possessing a usable amount of marihuana over four ounces. The punishment assessed by the jury is imprisonment for three years. In six grounds of error the appellant asserts that the evidence is insufficient to support the conviction, the court erred in failing to instruct the jury that three witnesses were accomplice witnesses as a matter of law, the evidence which tends to connect the appellant with the commission of the offense is insufficient to corroborate the testimony given by the accomplice witnesses, and the court erred in failing to submit to the jury the appellant's motion for probation.

At approximately 4:30 a.m. on April 22, 1974, five officers of the Police Department of the City of Abilene entered a residence at 1025 Vine Street to serve a search warrant. They found the appellant sitting on a couch in the living room. Charlie Hoe was sitting on another couch in the same room. Jimmy Stayton was stopped by the officers as he was leaving the living room going toward the kitchen. Darrell and Jo Nell Owens were asleep in a bedroom at the east side of the house, and Charles David Whitehead was asleep in a bedroom at the southwest corner of the house. The appellant, Hoe, and Stayton appeared to be under the influence of drugs. There was a smell of burned marihuana which was stronger in the living room than the rest of the house. A 'heavily used toker,' a device used for smoking marihuana cigarettes, was found in a pocket of the pants worn by the appellant. Slightly more than one ounce of marihuana was found in a container under the couch on which the appellant was sitting, and 0.05 ounces of marihuana seeds were found scattered on and under the cushions on the couch where the appellant was seated. In a dresser drawer in the bedroom at the southwest corner of the house a letter postmarked January 14, 1974, and an envelope with a bank statement were found, both addressed to the appellant at a Bellmead, Texas address. In the drawer with the letters were two plastic baggies containing 1.6 pounds of marihuana. The total amount of marihuana found in the house was over seventeen pounds. There were also several pipes used for smoking marihuana and a scale calibrated in ounces suitable for weighing marihuana found in the house. ¹

The appellant erroneously assumes that Jo Nell Owens was an accomplice witness and that it was necessary to corroborate her testimony. The appellant called Jo Nell Owens as a witness, and he offered her testimony; therefore, her testimony is not that of an accomplice witness. Article 38.14, Vernon's Ann.C.C.P., does not require corroboration of a witness called by an accused. Jenkins v. State, 484 S.W.2d 900 (Tex.Cr.App.1972); Brown v. State, 476 S.W.2d 699 (Tex.Cr.App.1972); Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955); 24 Tex.Jur.2d, § 687, p. 304, and see Chapman v. State, 486 S.W.2d 383 (Tex.Cr.App.1972). Jo Nell Owens testified that the appellant and Stayton had come to the Owens' house Saturday evening and that on Sunday evening all of the people whom the officers found in the house had been smoking marihuana. She said that the appellant and Stayton brought the large quantity of marihuana to the house and that they weighed and placed quantities of the marihuana in baggies.

The court charged the jurors on the law of accomplice testimony instructing them that they were to determine from the facts whether Jo Nell Owens, Darrell Owens, and Charles David Whitehead were accomplice witnesses. From what has already been said no such instruction was necessary as to the testimony of Jo Nell Owens since she was a defense witness.

It is unnecessary for us to determine whether the court erred in failing to charge that Darrell Owens and Charles David Whitehead were accomplices as a matter of law, if we apply the rule stated in Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969). There it was said:

'In Harrell v. State, 107 Tex.Cr.R. 8, 294 S.W. 597, the failure to peremptorily instruct the jury that the witness was an accomplice witness was reversible error where the testimony of the witness was held essential to the conviction.

'The distinction between the line of cases represented by Harrell v. State, supra, and the line of cases where the submission of the issue was held sufficient though the evidence made it apparent that the witness was in fact an accomplice witness was explicated in Cantrell v. State, 129 Tex.Cr.R. 240, 86 S.w.2d 777. See also Phillips v. State, 144 Tex.Cr.R. 566, 164 S.W.2d 844; Nisbet v. State, supra (170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. den. 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1524).

'It appears from the cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice as a matter of law, and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State's case (a) because, if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without the testimony of the witness (whether he be an accomplice or not) there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice witness.'

We find the evidence already summarized, which does not include any of the testimony of Darrell Owens or Whitehead, is amply sufficient to sustain the jury's verdict and this conviction. That evidence shows that the appellant at least jointly exercised actual care, control, and management over the marihuana and that he knew the material he possessed was marihuana.

We have considered Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975) and all of the cases cited by the appellant including Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1971); Haynes v. State, 475 S.W.2d 739 (Tex...