Culmore v. State

• Decision Date: 19 November 1969
• Docket Number: No. 42451,42451
• Citation: 447 S.W.2d 915
• Parties: Mathew CULMORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 915

447 S.W.2d 915

Mathew CULMORE, Appellant, v. The STATE of Texas, Appellee.

No. 42451.

Court of Criminal Appeals of Texas.

Nov. 19, 1969.

Horace G. Goodrich, Emmett Colvin, Jr., Dallas (on appeal), for appellant.

Henry Wade, Dist. Atty., Dallas, John Tolle, James P. Finstrom, and Camille Elliott, Asst. Dist. Attys., Dallas, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of marijuana; the punishment, sixteen years imprisonment.

We are met at the outset with appellant's serious contention that the evidence is insufficient to support the conviction. These are the facts viewed in the light most favorable to the State. Officers, armed with a search warrant, approached the home of one Claude Bell. After knocking, but without announcing their identity or purpose, the officers entered the home and discovered four men and a woman seated in the 'den.' There was no testimony from any of the officers that any person in the house attempted to flee, was seen or heard moving about, or observed making any suspicious movements. Each was searched and nothing incriminating was found. They then proceeded into the bedroom where they found a quantity of marijuana and pipe in which some 'used' marijuana was found. The only probative fact which implicated appellant was that the officers detected the odor of marijuana in both the 'den' and in the bedroom. None of the officers testified that in their opinion any of the five appeared to be under the influence of marijuana at that time or later. The State lays much stress on the fact that they found a packet of cigarette papers in appellant's pocket which were returned to the appellant after the search. This can have no probative effect in the case at bar as no marijuana cigarette 'butts' were found in the 'den' or anywhere in the house. However, there were regular tobacco butts found in the ash tray in the den. All of the marijuana and other items introduced into evidence were found in the bedroom occupied by Claude Bell in his parents' home. Said bedroom was across and down the hall from the 'den,' the distance between the rooms did not appear in the record. There was no showing that appellant had ever been in the bedroom, and it is noted that among the items found there were no cigarette papers. A search of John Rock's automobile, with his consent, revealed no marijuana or other contraband. If marijuana had been smoked prior to the officer's entry, it had been smoked in the pipe which was found in the bedroom.

This is the State's case. Appellant testified that he was seventeen years old at the time charged and had no prior felony convictions. He stated that he had seen Bell, whom he did not know too well, at a shopping center earlier in the day; that Bell had invited him and John Young, who was present, to come by the Bell's house that evening; that they had no transportation and did not decide to go until John Rock unexpectedly came by in his car; that they had arrived at the Bell's home in Rock's car some 30 to 45 minutes before the officers; that they were admitted into the house by the 17 year old girl; that he never left the 'den' after his arrival; that they were all watching television when the officers suddenly walked into the room; that he had no knowledge there was marijuana in the house; that he did not detect any odor because of an allergy which affected his olfactory capacity. He stated that he smoked ready made cigarettes and had a package with him at the time.

This being a circumstantial evidence case, attention is called to the following from 24 Tex.Jur.2d, Evidence, Section 742, p. 422:

'In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.'

Though not relied upon by the State, the nearest case is the majority's opinion in Hunt v. State, 158 Tex.Cr.R. 618, 258 S.W.2d 320. The obvious distinction is that in Hunt the accused was seen making motions in the immediate area where the contraband was later found. Here appellant was never shown to have entered the bedroom, across the hall from the 'den,' where the marijuana and the pipe were found.

The next case in point is Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56, where the marijuana cigarette upon which the prosecution was based was found across the street from Gonzales' automobile and Martinez was not shown to have had any prior connection with Gonzales. In that case even though there was a plea of Nolo contendre this Court found the evidence insufficient to support the plea.

We then move to Arsiaga v. State, Tex.Cr.App., 372 S.W.2d 538, where the court expressed serious doubt as to the sufficiency of the evidence in a case where the accused was shown to be in a position to have come in contact with the contraband, but the State was unable to show that he had ever had the same in his control and custody.

In Brown v. State, Tex.Cr.App., 437 S.W.2d 828, we had occasion to distinguish Arsiaga v. State, supra, and Martinez v. State, supra, and Brock v. State, infra. The facts in Brown are clearly different and more incriminating than those before us here.

In Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745, the general rule in cases such as the one at bar is accurately stated as follows:

'A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused; and proof amounting only to a strong suspicion or mere probability is insufficient.'

Attention is also directed to Glenn v. United States, 6 Cir., 271 F.2d 880, where the Court said:

'The mere presence of the accused at the scene of a crime does not, of itself, justify drawing an inference that he participated therein.' ¹

A conviction on circumstantial evidence cannot be sustained on proof amounting only to a strong suspicion or mere probability. Such proof does not exclude every other reasonable hypothesis except that of the guilt of the accused.

It therefore follows from what we have said that the evidence is insufficient to support the conviction and the judgment must be reversed and the cause be remanded.

DOUGLAS, Judge (concurring).

Considering the evidence produced at the guilt stage of the trial in the light most favorable to the State, I concur in the result that the evidence is insufficient to support the conviction.

WOODLEY, Presiding Judge (dissenting).

The opinion reversing this conviction reaches the conclusion that the evidence is insufficient but fails to set out the evidence from the standpoint most favorable to the jury's verdict. Instead, the opinion sets out testimony of appellant which the jury was not bound to accept as true.

It is a fundamental rule in criminal cases that testimony introduced by the defendant may be used against him. Spears v. State, 103 Tex.Cr.R. 474, 281 S.W. 555.

It is equally well settled that the jury is not bound to accept all or any part of the defendant's testimony as true.

We are not here confronted with a case where the state was bound to prove beyond a reasonable doubt that the defendant had exclusive possession and control of a narcotic drug.

The record reflects that this is a companion case to those of C. D. Bell III, J. P. Rock and J. S. Young, Jr. ¹

In his charge, to which there were no objections, the court defined 'possession' and instructed the jury that ownership was not necessary to constitute possession, and that more than one person may have possession of a thing at the same time.

The court also charged the jury on the law of principals and submitted the case to the jury as one depending for conviction on circumstantial evidence.

Two rooms of the house were lighted; the bedroom where the marijuana was found and the den where appellant, his co-indictees and a 17 year old girl were sitting when two of the officers executing the search warrant entered the front door. ²

The evidence relating to the marijuana found in the bedroom is shown by the following testimony of Dallas Police Officer Sam C. Gonsales:

'I found on top of this desk that I pointed out in the bedroom a flour sifter that had traces of marijuana in it. This is the instrument they used to strain their manicured marijuana; also in the second drawer on the left-hand side of this desk I found a small baggie with approximately 100 grains in marijuana and seeds that was rough marijuana.'

To connect appellant with the possession of the bags of marijuana, in addition to his presence in the den with all the other persons who were in the house, are the following facts and circumstances.

Officer Gonsales testified 'there was A real strong smell of marijuana smoke when we entered the house. * * * First we searched the people in the den * * *.

'Q. * * * What is State's Exhibit No. 7?

'A. It's a package of cigarette papers.

'Q. That's normally used to do what?

'A. Roll cigarettes. Most of the places where we find marijuana, this is the most common brand of cigarette papers found.

'Q. You're telling them you found them in the left shirt pocket of that Defendant, is that correct?

'A. Yes, sir.

'Q. Did you see ashtrays in there...