Curtis v. State

• Decision Date: 12 March 1975
• Docket Number: No. 49520,49520
• Citation: Curtis v. State, 519 S.W.2d 883 (Tex. Crim. App. 1975)
• Parties: William C. CURTIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 883

519 S.W.2d 883

William C. CURTIS, Appellant, v. The STATE of Texas, Appellee.

No. 49520.

Court of Criminal Appeals of Texas.

March 12, 1975.

Laird Palmer, Austin, for appellant.

Robert O. Smith, Dist. Atty. and David A. Sheppard, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, four years.

Initially, appellant claims the evidence is insufficient to support his conviction.

The record reflects that upon entering appellant's Austin apartment, pursuant to a search warrant, officers heard loud music and smelled marihuana. Upon entering the living room, they saw appellant and four others seated in a circle on the living room floor. A manila envelope containing marihuana, as well as an ashtray containing a marihuana cigarette butt, was found near the center of the circle. They discovered a sixth person, Millerdean Brooks, asleep in a bedroom. The officers found a small baggie of marihuana and some cigarette papers in a sport jacket in the closet of that bedroom. Officers also recovered some envelopes addressed to appellant at a Fort Worth address in that bedroom, as well as envelopes addressed to Brooks. In the kitchen the officers retrieved two marihuana butts and four small tinfoil wrappers containing traces of heroin from a trash can. On a counter in the kitchen, they located a small manila envelope, which was not introduced into evidence, containing marihuana particles.

One of the officers testified that the apartment had been under surveillance for approximately two days before the execution of the warrant. He and another officer testified that they observed between five and ten people enter and leave the premises within three hours prior to the execution of the warrant. Further testimony indicated appellant arrived at the apartment a half hour to an hour before the officers executed the warrant.

Another officer testified that the apartment was sparsely furnished and that the bedroom in which Brooks was found was the only one which contained furniture, except for 'a few pieces--a couple of lamps . . . some stereo equipment . . .' in other parts of the apartment.

The manager of the apartment where the arrest occurred testified that appellant, who represented Brooks as his wife, rented the apartment under the assumed name of William Johnson.

Department of Public Safety Chemist John McCutcheon testified that he analyzed the suspected contraband recovered from appellant's apartment and determined that it totaled 9/10 of a gram of marihuana. He also stated that the tinfoils contained traces of heroin and 0.3 grams of quinine.

An accused may with another or others jointly possess dangerous drugs or narcotics. Simpson v. State, Tex.Cr.App., 486 S.W.2d 807; Evans v. State, Tex.Cr.App., 456 S.W.2d 911; King v. State, 169 Tex.Cr.R. 34, 335 S.W.2d 378. Mere presence, however, at a place where narcotics or dangerous drugs are being used or possessed by others does not in itself justify a finding of joint possession. Hicks v. State, Tex.Cr.App., 489 S.W.2d 912; Adair v. State, Tex.Cr.App., 482 S.W.2d 247; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915.

The State must show that (a) the appellant exercised, either singularly or jointly, care, custody, control and management over the contraband and (b) that he knew the object he possessed was contraband. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Hineline v. State, Tex.Cr.App., 502 S.W.2d 705; Powell v State, Tex.Cr.App., 502 S.W.2d 705; Williams v. State, Tex.Cr.App., 498 S.W.2d 340. This affirmative link is established by showing facts and circumstances which indicate the accused's knowledge and control of the contraband. Williams v. State, supra; Powell v. State, supra; Alba v. State, Tex.Cr.App., 492 S.W.2d 555.

The evidence in the case at bar is sufficient to link appellant with the contraband found in the bedroom closet where Brooks was sleeping. Appellant, representing Brooks as his wife, rented the apartment. The manager testified that he lived there and that she was present when he moved in. Letters addressed to both the appellant and Brooks by name were found in that bedroom. The contraband was found in a sport jacket in a closet of that room. One of the officers testified that this bedroom was the only room which contained any significant furniture.

In oral argument before this Court, appellant's counsel placed great reliance upon Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App. 1975). In that case the defendant's cousin testified that the night in question was the first that defendant had ever spent in the apartment and that the paraphernalia belonged to her and another person and that she had pleaded guilty to the charges arising out of the incident. There was additional testimony concerning needle marks, but the testimony did not reflect whether any fresh tracks were found on the defendant. This Court reversed the conviction for possession of narcotic paraphernalia and concluded that the evidence did not reflect an affirmative link between the paraphernalia and the defendant, and that the defendant's mere proximity to the prohibited paraphernalia was insufficient to prove the fact that he possessed it. In the case at bar, however, the record affirmatively reflects the defendant's control and management of the apartment.

Appellant's second ground of error challenges the sufficiency of the search warrant affidavit, as well as the introduction of the marihuana, the tinfoil, and one of the envelopes addressed to Brooks. An examination of the affidavit fails to support appellant's contention that the affidavit does not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Under Aguilar, an affidavit for a search warrant based on hearsay information must set forth two elements. First, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and, secondly, that he be informed of some of the underlying circumstances from which the affiant concluded that the informant was credible and his information reliable.

The pertinent portion of the affidavit recites:

'. . . affiant has received information from a reliable and credible source that William C. Curtis C/M 1/28/44 and other person or persons unknown to source by name, age or description, are keeping for the purpose of sale, a narcotic drug, to-wit: heroin, at the above described residence. My source has told me that he has been present during the past 48 hours and has seen William C. Curtis C/M selling heroin by the hit and one half gram. I believe my source of information to be true and correct because my source has given information in the past which has proven to be true and correct in every instance; further to the best of my knowledge my source does not have a criminal record; further I have observed within the past 48 hours several known narcotic addicts going to, staying a short while, and then leaving, the above described premises.'

The recitations in the affidavit in the case at bar state, first, that the informant had actually been inside the apartment in question and seen the appellant selling heroin, and, second, that the informant had provided true and correct information on other occasions. The affidavit is sufficient. Powell v. State, Tex.Cr.App., 505 S.W.2d 585.

Appellant's third ground of error relates to three instances in which he claims the court denied him discovery. Appellant charges the court's action denied him an opportunity to interview the witnesses and prepare his defense. The ground is clearly multifarious. Article 40.09, Sec. 9, Vernon's Ann., supra. We shall, however, briefly discuss appellant's contentions.

The record reflects that the court granted appellant's pre-trial motion for discovery, requiring the State to produce a list of all the witnesses they intended to call to the stand during their case in chief. During the presentation of motions immediately prior to trial, the court required the State, upon appellant's request, to verify that the list was complete. The State responded that it intended to call one additional witness, a woman, whose name they did not know. Appellant objected. The following colloquy then ensued.

'MR. PALMER (appellant's attorney): Judge, I'm entitled to know the names of the witnesses before we go to trial. I can't get the pre-trial discovery which I'm entitled to without knowing their names . . .

THE COURT: I'll do this. If they don't give you the name of the witness before they put on the witness other than listed here on their direct testimony, I'll give you an opportunity to talk to her before s...