Davis v. State

• Decision Date: 15 May 1996
• Docket Number: No. 09-94-340,09-94-340
• Parties: Martin DAVIS, Appellant, v. The STATE of Texas, Appellee. CR. . Re
• Court: Texas Court of Appeals

Page 781

923 S.W.2d 781

Martin DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 09-94-340 CR.

Court of Appeals of Texas,

Beaumont.

Resubmitted April 18, 1996.

Decided May 15, 1996.

Ray Bass, Austin, for appellant.

Clyde M. Herrington, District Attorney, Lufkin, for State.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION ON FURTHER MOTION FOR REHEARING

STOVER, Justice.

We withdraw our prior opinions filed on March 6, 1996, and April 4, 1996, and substitute the following. Convicted of possession of marijuana in a trial before the court, appellant was sentenced to five years in the Texas Department of Criminal Justice, Institutional Division, and was fined $10,000. From this conviction, Davis appeals.

Facts

On September 14, 1993, at approximately 1:00 a.m., appellant was driving through Lufkin, Texas, with a female passenger, Ms. Augustine. According to officers working traffic that night, they observed a vehicle weaving line to line in a lane of traffic. Officer Weatherford testified that the weaving pattern occurred about three times. Although there was no specific traffic violation, since the vehicle, though weaving, never actually crossed over the line separating the lanes, Officer Bivins testified he stopped the car because he was suspicious that the driver was intoxicated or tired.

After the officers effected the traffic stop, appellant immediately got out of his vehicle and met Officer Bivins at the door of the patrol unit, just as the officer was exiting his vehicle. It was Officer Bivins' opinion that Davis kept moving away from his own car, because he did not want the officer near it. Leaving Davis with Officer Weatherford, Officer Bivins walked up to appellant's car to question the female passenger about her destination, residence, and purpose on the trip. Standing at the passenger's door, he did not detect an odor of alcohol or any type of drug coming from the vehicle. Furthermore, Officer Bivins stated that he had detected no odor of alcohol on appellant's person. Based on those observations, the officer testified that, while he stood at the passenger door talking to Ms. Augustine, he made the determination that appellant was not intoxicated. At that point, the initial purpose of the traffic stop was completed.

In her responses to the officer's questions about their trip, Officer Bivins stated that Augustine told him she was merely along for the ride. She later indicated she and Davis had been looking at some property in Houston. Officer Bivins then asked similar questions of appellant. Appellant said he was from New York, had gone to Houston to look at some apartment buildings for investment purposes, and had brought Ms. Augustine along to help him assess the property. Officer Bivins concluded that appellant's statement in regard to the purpose of the trip was inconsistent with Ms. Augustine's statements. Furthermore, it was Officer Bivins' opinion that appellant did not appear to be a person who would have money to invest in apartment complexes. The borrowed car, appellant's clothing, his hair, and the way he talked "did not appear to (sic) someone who is on a business trip." In addition to questioning Davis and Augustine, the officers ran background checks on them; Davis had no history of convictions and his drivers' license was valid. A license check on the vehicle revealed the car was not in Davis' name; however, the check also revealed the vehicle was not reported stolen. According to Davis, the car belonged to his girlfriend who was not along on the trip; Ms. Augustine said the car belonged to Davis. The insurance papers on the vehicle were in proper order. In contrast to Davis, the background check on Ms. Augustine indicated she had an arrest and conviction for a drug offense.

After the initial questioning of Davis and Augustine, the officers asked appellant for consent to search the vehicle. Davis refused to give consent. Officer Bivins did a pat down search of appellant and found no weapons or drugs. The officers then informed appellant that he was free to leave at any time, but the vehicle was being detained for an on-scene investigation.

The canine unit was then called out, and, once on the scene, the narcotics dog made a positive alert on the trunk of the vehicle. Upon request, appellant handed the keys to Officer Weatherford who opened and searched the trunk. Inside the trunk, the officers found various items, including male and female clothing and personal hygiene items loose in the trunk, along with a suitcase containing another bag inside it, which in turn contained what turned out to be marijuana.

The record on appeal includes a transcript, statement of facts, and a videotape of the temporary investigative detention that night; this court has considered all parts of the record in its review.

Appellant raises the following two points of error on appeal:

Point of Error One

The evidence is legally insufficient to sustain appellant's conviction for possession of marijuana.

Point of Error Two

The trial court reversibly erred in denying appellant's motion to suppress evidence obtained by an unlawful search.

Point Of Error One

Insufficiency of the Evidence

In his first point of error, appellant complains of the insufficiency of the evidence to sustain his conviction for possession of marihuana. Specifically, he argues that the State failed to prove that he knowingly exercised actual care, custody, control, or management over the substance. According to appellant, the hypothesis that appellant did not know of the presence of contraband is just as rational as the hypothesis that he knew of its presence; therefore, in appellant's view, the trier of fact could not have found each element of the offense beyond a reasonable doubt.

Citing Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), appellant acknowledges that reversal of a conviction based on circumstantial evidence is no longer warranted simply because the circumstantial evidence fails to eliminate every innocent hypothesis (the "outstanding reasonable hypothesis test") which might be reasonably suggested. In spite of his recognition of the authority of Geesa, however, appellant continues to employ an analysis which advances the proposition that if there is another hypothesis just as rational or equally reasonable to the hypothesis of guilt, no rational trier of fact could find that guilt has been established beyond a reasonable doubt. Although couched in slightly different terms, appellant's analysis continues to be based on the "outstanding reasonable hypothesis test," which was rejected by the Texas Court of Criminal Appeals in 1991 in Geesa and again recently in Brown v. State, 911 S.W.2d 744 (Tex.Crim.App.1995).

Texas continues to follow the standard of review set out by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for a legal sufficiency point of error. In reviewing the legal sufficiency of the evidence, whether in a direct or a circumstantial evidence case, we view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find each of the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995).

To prove unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, custody, control, or management over the contraband; See TEX.HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 1992); and (2) knew the substance he possessed was contraband. King, 895 S.W.2d at 703; Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). These elements may be proved by circumstantial evidence. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). According to the Texas Court of Criminal Appeals in Brown, supra, evidence which affirmatively links the accused to the contraband suffices for proof that he possessed it knowingly.

In its use of the phrase "affirmative links," the Court of Criminal Appeals in Brown emphasized that, rather than being a standard of review in its own right, the term is simply a shorthand expression of what must be proven to establish that a person possessed some kind of drug "knowingly or intentionally." Its use is not a return to the "outstanding reasonable hypothesis" test of Humason v. State, 728 S.W.2d 363, 367 (Tex.Crim.App.1987). On the contrary, it is used as a means of evaluating the sufficiency of the evidence according to the success with which the evidence proves such a link between the accused and the contraband. See Brown, supra. In an effort to resolve any conflict among the courts of appeal over the relationship of the concept of "affirmative links" and the "outstanding reasonable hypothesis" test, the Court of Criminal Appeals in Brown stated that its earlier opinion in Geesa, supra, did not significantly compromise the "affirmative links" case law. In short, "... each defendant must still be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong it excludes every other outstanding reasonable hypothesis except the defendant's guilt." Brown, 911 S.W.2d at 748.

Appellant is correct when he argues that an accused's mere presence in the vicinity of contraband is not enough to establish that a defendant knowingly possessed the contraband. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App.1981). Moreover, when the accused is not in exclusive possession of the place where contraband is found, it cannot be concluded that he had knowledge or control over the contraband unless there are additional independent facts and circumstances which affirmatively link him to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref'd.). Possession of contraband need not be exclusive,...