Flores v. State, 68416

• Decision Date: 18 May 1983
• Docket Number: No. 68416,68416
• Citation: 650 S.W.2d 429
• Parties: Don FLORES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 429

650 S.W.2d 429

Don FLORES, Appellant, v. The STATE of Texas, Appellee.

No. 68416.

Court of Criminal Appeals of Texas,

En Banc.

May 18, 1983.

Ed Paynter, Abilene, for appellant.

Patricia A. Elliott, Dist. Atty., and Jorge A. Solis, Asst. Dist. Atty., Abilene, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of methamphetamine; the punishment is imprisonment for 5 years and a fine of $500; probation was granted.

The appellant urges that the evidence is insufficient to support his conviction; we agree; the evidence in this record is insufficient to support the conviction.

The appellant waived a jury and the trial was before the court. The only evidence in the record bearing on the appellant's possession of methamphetamine follows:

(Prosecutor on direct examination of Jimmy Seals)

"Q Now then, Officer Seals, were any of these items found to be in plain sight there in the residence?

"A Yes, they were.

"Q Okay. And as I understand your testimony, items containing controlled substances were found in the kitchen, in the living room, on the floor of the hall, and on the floor of the southwest bedroom; is that correct?

"A Yes, sir.

"Q And where was the Defendant, Mr. Flores, when the search warrant was first executed?

"A We located Don Flores, along with Larry Callison, in the southeast bedroom of the residence.

"Q All right. Officer Seals, were you able to find any indication of Mr. Flores living there in that residence, or being connected with that residence, besides his being there?

"A Yes, I did.

"Q And what did you find?

"A Okay. We found a bank bag from the Peoples State Bank of Clyde, Texas. Inside this bank bag was a driver's license to Don Flores and also a receipt made out to Don Flores from Zale's Jewelers. This was found on top of a chest on the east wall of the southeast bedroom."

The State in its brief summarizes the law as follows:

"To establish the unlawful possession of a controlled substance it is necessary to prove that the accused exercised care, control and management over the contraband and that the accused knew the matter possessed was contraband. Dubry v. State, 582 S.W.2d 841 (Crim.App.1979). It is not necessary to prove that the accused was in exclusive possession of the narcotics in question. Evidence which shows that the accused jointly possessed the narcotics with others is sufficient to sustain a conviction. Damron v. State, 570 S.W.2d 933 (Crim.App.1978)."

The affidavit for the search warrant alleged that Larry and Delene Callison and a person or persons unknown to your affiant either by name or description were in control of the residence searched and possessed methamphetamine there. The State summarizes the evidence that methamphetamine and narcotic paraphernalia were found in open view in several rooms of the residence which officers, armed with the search warrant, had searched. Those in the residence at the time of the search were Larry Callison, Yvonne Callison, Clifton Morley, Tammy Morley, Gilbert McGaugh, Rhonda McGaugh, and the appellant.

The State in its brief concludes:

"The evidence indicates recent usage of methamphetamine, as all but...