Earvin v. State

• Decision Date: 03 May 1982
• Docket Number: No. 05-81-00024-CR,05-81-00024-CR
• Citation: 632 S.W.2d 920
• Parties: Cornell EARVIN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 920

632 S.W.2d 920

Cornell EARVIN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 05-81-00024-CR.

Court of Appeals of Texas, Dallas.

May 3, 1982.

Kerry P. FitzGerald, Dallas, for appellant.

Maridell Templeton, Asst. Dist. Atty., Dallas, for appellee.

Before the Court en banc.

GUITTARD, Chief Justice.

The sole ground of error is insufficiency of the evidence to support a conviction for possession of more than four ounces of marihuana. The trial was before the court without a jury and punishment was assessed at a probated sentence of two years. We find the evidence sufficient.

The principal witness for the State was Gloria Woods, an officer of the Dallas Police Department. Woods obtained a warrant for the search of a one-story residence at 4707 Bowling Street in Dallas. On the occasion in question she went to that address in the company of Officer James. She first entered the residence alone and spoke to Willie Helen Morris, who resided in the house with her husband. Two other persons were in the room. Appellant, who is Willie Helen's brother, was sitting in a chair, and a young woman was sitting on a sofa located within a foot of the chair. The sofa and the chair were facing at right angles. The woman on the sofa testified at the trial that she had accompanied appellant to his sister's residence and that they had been there about five minutes when the officers arrived.

Woods testified that she gave Willie Helen ten dollars and told her that she wanted to purchase marihuana. As she gave Willie Helen the money, appellant jumped up and said, "Officer Woods, you can't do that. You know what you are. You're a cop." He then jerked the ten dollars away from Willie Helen and gave it back to Woods.

Woods further testified that when she entered the room she saw a large brown paper bag on the floor between the sofa and the chair in which appellant was sitting. Questioned further about the location of the bag with respect to the chair, Woods said that it was "right next to the chair," "less than a foot" from it, "right at his feet." A diagram in evidence shows the bag between the chair and the sofa and somewhat to the front of each. On cross examination Woods testified as follows:

Q. And would you describe the bag or the sack when you first saw it?

A. It was just a large brown paper bag.

Q. Like you get at the grocery store?

A. Yes.

Q. Okay, And was it open, closed, or folded up, or was or was it closed, or folded up, or what?

A. The bag was open.

Q. Okay. Was it fully open?

A. What do you mean, fully open?

Q. Well, could you see into it without opening it up any further?

A. Yes.

After appellant identified Woods as an officer, Woods went outside and signaled to Officer James. They then reentered the house, made a search, and arrested the occupants, including appellant. James picked up the paper bag and gave it to Woods, who examined the contents and found twenty-six one-ounce plastic bags of marihuana. Larger quantities of marihuana, aggregating approximately eighteen pounds, were found in other rooms of the house.

We conclude that this evidence, though circumstantial, is sufficient to support the conviction for possession of marihuana. In reaching this conclusion we have had difficulty determining our proper function in reviewing the fact findings of a trial court or jury. Accordingly, all twelve members of the court have reviewed the case and have considered not only the decisions which have involved possession of controlled substances but also the authorities bearing on the scope of appellate review of findings of fact in cases of circumstantial evidence.

Ordinarily the function of the reviewing court is not to determine whether it believes the evidence relied on to establish guilt, but rather whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 614 S.W.2d 155, 159 (Tex.Cr.App.1981), (quoting from Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). This standard of review has long been generally accepted in Texas. Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969) cert. denied 397 U.S. 958, 90 S.Ct. 967, 25 L.Ed.2d 143.

The court of criminal appeals, however, has frequently stated a more particular test to be applied when reviewing the sufficiency of circumstantial evidence. In Flores v. State, 551 S.W.2d 364, 367 (Tex.Cr.App.1977), Presiding Judge Onion states:

It is well established that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt and proof amounting only to a strong suspicion is insufficient.

Similar statements may be found in the following cases: Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Cr.App.1981); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745, 747 (1956). In some opinions this rule requiring that all reasonable alternative hypotheses be excluded has been recognized as a more rigorous rule than the general rule that the evidence must be viewed in the light most favorable to the prosecution. See Sewell v. State, 578 S.W.2d 131, 135 (Tex.Cr.App.1979); Griffin v. State, 614 S.W.2d 155, 159, N. 5 (Tex.Cr.App.1981).

Although the court has often repeated this rule, it appears to have adopted a less rigorous test in another line of cases. In Ysasaga v. State, 444 S.W.2d 305, 308 (Tex.Cr.App.1969), Presiding Judge Onion formulates the rule as follows:

Ordinarily the test on appeal is whether there was evidence from which the jury (advised of the restrictions which the law places upon them in condemning one of circumstantial evidence) might reasonably conclude that every reasonable hypothesis other than guilt was excluded. (Emphasis added.)

Similar language is found in Dixon v. State, 541 S.W.2d 437, 440 (Tex.Cr.App.1976), and in Moore v. State, 532 S.W.2d 333, 337 (Tex.Cr.App.1976), both tests are stated. Consistent with the Ysasaga formulation is Jones v. State, 442 S.W.2d 698, 702-03 (Tex.Cr.App.1969), in which Judge Onion comments that appellant's counsel had argued before the jury and again on appeal "a number of possibilities or suppositions they draw from the evidence," but he dismisses them as follows: "These are all matters which go to the weight to be given the evidence, and in determining the sufficiency of the evidence it must be viewed in the light most favorable to the jury's verdict."

The rule as stated in Ysasaga appears less rigorous in that it permits the jury to decide, under appropriate instructions, whether every reasonable hypothesis other than guilt has been excluded, whereas the rule in Flores appears to require the appellate court to determine for itself whether any alternative hypothesis is reasonable. According to Flores, if the appellate court determines from its own review of the evidence that the alternative hypothesis is reasonable, then the trial court's determination must be set aside, even though the evidence provides a rational basis for the trier of fact to determine that it is not reasonable.

Analysis of the opinions of the court of criminal appeals fails to reveal whether this apparent inconsistency in stating the rule has had any substantial impact in the actual decision of cases. The more rigorous statement of the rule concerning conclusion of alternative hypotheses is usually accompanied by various qualifications. Thus it is said that the rules of circumstantial evidence do not require that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but the alternative hypothesis must be reasonable, consistent with the facts proved, and not out of harmony with the evidence. Flores v. State, supra; Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969). Moreover, the court has said that it is not necessary that every circumstance relied on to support the conviction point directly and independently to the defendant's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Flores v. State, supra; Herndon v. State, 543 S.W.2d 109, 121 (Tex.Cr.App.1976); Mills v. State, 508 S.W.2d 823, 827 (Tex.Cr.App.1974).

Moreover, the court has frequently declared that in determining whether the circumstances are sufficient to support a finding of guilt, each case must be tested on its own facts. Moore v. State, 532 S.W.2d 333, 337 (Tex.Cr.App.1976); Ysasaga v. State, supra. The court has rarely discussed specific alternative hypotheses raised by the evidence, although occasionally opinions have mentioned an alternative hypothesis which the evidence has failed to exclude. See Brock v. State, 162 Tex.Cr.Rep. 339, 285 S.W.2d 745, 747 (Tex.Cr.App.1956). More often, the court has analyzed the evidence and held it to be insufficient because of particular circumstances which the evidence failed to establish. See Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Cr.App.1981); e.g., Dubry v. State, 582 S.W.2d 841, 844 (Tex.Cr.App.1979) Underwood v. State, 571 S.W.2d 7, 9 (Tex.Cr.App.1978); Stogsdill v. State, 552 S.W.2d 481, 487 (Tex.Cr.App.1977); Flores v. State, supra, at 368-69. Sometimes controlling weight has been given to the State's failure to present available evidence which might have a bearing on the guilt of the accused. Waldon v. State, 579 S.W.2d 499, 502 (Tex.Cr.App.1979); Ysasaga v. State, supra, at 309.

From these authorities, it is evident that the rule requiring exclusion of alternative hypotheses does not provide a simple formula for deciding the question of the sufficiency of circumstantial evidence to support a finding of guilt. In determining the relevant...