Garcia v. State

• Citation: 790 S.W.2d 22
• Decision Date: 30 March 1990
• Docket Number: No. 04-88-00422-CR,04-88-00422-CR
• Parties: Miguel Angel GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 22

790 S.W.2d 22

Miguel Angel GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 04-88-00422-CR.

Court of Appeals of Texas San Antonio.

March 30, 1990.

Rehearing Denied May 9, 1990.

Albert Lopez, Donald A. Clowe, San Antonio, for appellant.

Lynn Ellison, Asst. Dist. Atty., Karnes City, for appellee.

Before CADENA, C.J., and PEEPLES and ONION, JJ.

OPINION

ONION, Justice. ¹

This appeal is taken from a conviction for unlawful possession of marihuana in an amount of more than 50 pounds but less than 200 pounds. TEX.REV.CIV.STAT.ANN art. 4476-15, § 4.051(a), (c), (d)(1) (Vernon 1989). Following the jury's verdict of guilty, the court assessed appellant's punishment at fifty (50) years' confinement in the Department of Corrections, and at a fine of $5,000.00.

On appeal, appellant raises four points of error. In his fourth point of error he challenges the sufficiency of the evidence to support his conviction. Since we sustain this contention and reverse the conviction we need not dispose of the other points of error.

The record reflects that on July 28, 1987, Jane Herber, Special Agent with the Drug Enforcement Administration (DEA) in McAllen, was advised by a confidential informer that a load of marihuana of approximately 200 pounds would be leaving the Valley the next day. The tip included the information that the marihuana was to be taken to a truck stop located on Interstate Highway 37 near Pleasanton, and delivered to an unknown person. It was to be transported in a 1979 silver colored Mercury automobile bearing Texas license plates 964-RGE. Herber contacted Ronnie Lawson, Texas Department of Public Safety (DPS) investigator in San Antonio. Plans were made to follow the automobile as it left the Valley, and to intercept it.

On the morning of July 29, 1987, the Mercury automobile left from an area north of Donna followed by agents Herber and Morrison. Herber was able to inform Lawson the automobile was en route, Lawson was able to arrange for DPS air surveillance and a license check roadblock north of the truck stop, and coordinated the efforts with members of the Sheriff's office in Atascosa County.

Agent Herber testified the 1979 Mercury was being driven by a short, stocky red-haired Mexican man who was accompanied by a Hispanic female passenger. About 10 a.m. Herber and agent Morrison terminated their surveillance and returned to McAllen. Agents Matthews and Ambrose continued the surveillance until the Mercury stopped at a Gulf station and a Dairy Queen truck stop a few miles south of Pleasanton. About 4:30 p.m. Matthews described the occupants of the Mercury as had Herber; neither of the occupants was the appellant.

Robert Duvall, DPS Narcotics Investigator, testified that he drove by the Dairy Queen and looking in he saw four men seated at a table; one was red-haired and another was appellant, whom Duvall admitted he had never seen. As he drove past he didn't see any other red-haired individuals and felt the man he saw fitted the description he had been given. He knew nothing about a female companion and did not recall being given any such description. Duvall, like other officers, did not know what eventually happened to the red-haired man or his female companion.

About 45 minutes after the vehicle arrived at the Dairy Queen, it was observed to depart and stop nearby for gas. It was seen proceeding on the highway for about ten minutes until it was stopped at the planned roadblock. At this time appellant was driving the 1979 Mercury. The car was searched and marihuana was found in the trunk.

Travis Hall, DPS Highway Patrol Officer, testified that he stopped the Mercury; that appellant produced a driver's license giving an address in Mission in the Valley and that he (appellant) appeared a bit nervous and he was sweating. Appellant was not under the influence of drugs and no contraband was found on his person. Officer Hall found two marihuana seeds in a crease in the front seat of the car on the passenger side of the Mercury. They were each the size of the head of a straight pin. No contraband was found in a search of the interior of the car. Appellant had no key to the car's trunk, so the officers removed the back seat, and only after they got into the trunk did they smell the odor of marihuana. The marihuana was packaged in cardboard boxes and was shown to weigh almost 142 pounds. The officers admitted they didn't even try to lift fingerprints from the boxes or the trunk.

The chain of custody was established and the chemist testified the substance submitted to him was shown to be marihuana by chemical analysis.

Ricardo Fernandez gave only limited testimony for the State. This was by agreement with the State due to some immunity question. Fernandez testified he lived in Mission, that he knew appellant who lived three miles from him, and that he (Fernandez) owned the 1979 Mercury in question. He was not cross-examined.

Appellant offered no evidence.

In reviewing the sufficiency of the evidence to sustain the conviction this court must determine "whether, after viewing the evidence in the light most favorable to the prosecution any trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 n. 12, 99 S.Ct. 2781, 2789 n. 12, 61 L.Ed.2d 560 (1979). Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983) (opinion on reh'g). The standard for review is the same in both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App.1986); Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App.1985); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Carlsen, supra at 449.

A conviction based upon circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of defendant's guilt. Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987); Burns v. State, 676 S.W.2d 118, 120 (Tex.Crim.App.1984). Proof which amounts only to strong suspicion or mere probability of guilt is insufficient to support a conviction. Humason, supra at 366; Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim.App.1982).

If after viewing the evidence in this light, there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985).

The indictment in the instant case charged in pertinent part that appellant on or about July 29, 1987 "did then and there intentionally and knowingly possess a usable quantity of marihuana, to-wit: in an amount more than 50 pounds but not more than 200 pounds."

Where the accused is charged with the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, custody or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Martin, supra at 387; Nunn v. State, 640 S.W.2d 304, 305 (Tex.Crim.App.1982); Sinor v. State, 612 S.W.2d 591, 593 (Tex.Crim.App.1981); Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App.1979); Watson v. State, 752 S.W.2d 217, 221 (Tex.App.--San Antonio 1989, pet. ref'd).

The definition of possession as set out in TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(36) (Vernon Supp.1989) is: " 'Possession' means actual care, custody, control or management." Further, possession must be a voluntary act. TEX.PENAL CODE ANN. § 6.01(b) provides: "(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." See Watson, supra at 221. Such definition in the penal code applies to a prosecution under the Controlled Substances Act. See TEX.PENAL CODE ANN. § 1.03(b).

Possession of the controlled substance need not be exclusive and evidence which shows the accused jointly possessed the controlled substance with another is sufficient. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985); Oaks v. State, 642 S.W.2d 174, 176 (Tex.Crim.App.1982); Martin, supra at 387.

Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband by a showing which indicates the accused's knowledge and control of the contraband. Waldon v. State, 579 S.W.2d 499, 501 (Tex.Crim.App.1979), and cases cited therein. The burden of showing an affirmative link or links rests on the State. Damron v. State, 570 S.W.2d 933, 935 (Tex.Crim.App.1978). In order to meet this burden of proof the State must show something more than the accused's presence at the location where the contraband is found. Oaks, supra at 177-179; Caldwell v. State, 686 S.W.2d 363, 365 (Tex.App.--Houston [1st Dist.] 1985, no pet.).

The mens rea requirement of a possessory offense is knowledge by a defendant that his conduct or the circumstances surrounding his conduct constitutes possession of a controlled substance. Watson, supra at 222; Humason, supra at 365; TEX.PENAL CODE ANN. § 6.03(b).

Affirmative and relevant facts linking an accused to the contraband have been noted and listed in several opinions. See e.g., Martin v. State, supra; Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App.1987); Oaks v. State, supra. See also Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd); Trejo v. State, 766 S.W.2d 381, 384-85 (Tex.App.--Austin 1989, no pet.); Caldwell v. State, supra.

It has been determined that the finding of the contraband in open or plain view of the accused can establish an affirmative link. Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App.1981); Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976). In the instant case the contraband was not in plain view of...