Guiton v. State

• Decision Date: 16 December 1987
• Docket Number: No. 1154-84,1154-84
• Citation: 742 S.W.2d 5
• Parties: Dan Willies GUITON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 5

742 S.W.2d 5

Dan Willies GUITON, Appellant, v. The STATE of Texas, Appellee.

No. 1154-84.

Court of Criminal Appeals of Texas En Banc.

Dec. 16, 1987.

Edgar A. Mason, Izak Gregory, Dallas, for appellant.

Henry Wade, Dist. Atty., and Anne B. Wetherholt, Bob Phillips and Knox Fitzpatrick Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

A jury found appellant guilty of the offense of unlawful possession of a controlled substance, heroin, with the intent to deliver. The court assessed punishment at sixteen years' confinement. The Dallas Court of Appeals reversed appellant's conviction after finding the evidence was insufficient first, to show that appellant was in exclusive possession of the motel room in which the heroin was found and second, to link affirmatively the appellant to the contraband sufficiently to show both knowledge of and control over the contraband. Guiton v. State, 679 S.W.2d 66 (Tex.App.--Dallas 1984).

The Court of Appeals gave an excellent summary of the evidence adduced at trial and we now quote therefrom:

"In the early morning hours of December 14, 1979, at approximately 6:00 o'clock, L.W. Walsh, working as a security officer at the Dallas--Ft. Worth Airport, discovered a pistol in a purse he was screening by the use of an x-ray machine. He immediately sounded an alarm that J.D. Harris of the Department of Public Safety at D/FW Airport answered. Harris took the purse and Mozelle LaMont, who claimed ownership of the purse, to his nearby office. LaMont was accompanied by a female named Jean Tucker. LaMont was arrested for carrying a prohibited weapon.

"Tucker was not taken into custody. LaMont told Harris that she was there to meet a friend named Dan coming from Los Angeles. She did not know his last name. Upon searching LaMont it was discovered that she had $1200 on her person. Harris had her criminal background checked and discovered that she had been 'handled' four times on dangerous drugs. Officer Virginia Davis placed Tucker under surveillance. She observed her meet the appellant, who was carrying a small black suitcase and a hang-up type bag, and after a short conversation, they separated with Tucker remaining at the airport and the appellant leaving in a taxi. Officer Davis furnished the cab number and name to J.G. Vineyard, a Detective Sergeant with the police at D/FW, who in turn contacted the cab company. About thirty minutes after the appellant left in the cab Officer Davis observed him return to the airport terminal, at which time he was only carrying the hang up bag. The appellant again met Tucker, and he and Tucker, along with a baby that she was carrying, left the terminal together. Officer Davis observed the appellant and Tucker, along with the child, get in a Cadillac and drive away. Davis immediately notified Vineyard and an Officer Pinkston, who was working patrol, and requested that Pinkston maintain surveillance until the Cadillac left the airport. Pinkston stopped the vehicle for improper change of lanes, but did not issue a citation and testified he really only wanted to get the identification of the appellant. He did not see any luggage in the vehicle.

"Officer Vineyard, after checking with the cab company, had gone to the LaQuinta Motor Inn, Irving, Texas. There he met Officer Christy of the Irving Police Department. Vineyard went to the registration desk and observed a registration card that showed Dan Guiton had registered and was assigned room 289. Vineyard and Christy obtained a key to the room next to room 289, went to the room, and set up a surveillance on room 289 and the parking area. It appears that about two hours later the appellant, Tucker, along with the child, arrived at the motor inn, driving a Buick. The officers described how the appellant drove slowly, circling the inn and parking at the far end of the parking area. The Buick remained there for two or three minutes, then the appellant drove down and parked near room 289. The appellant and Tucker, who was carrying the child, got out of the car and immediately went upstairs to the door of room 289. Appellant reached up above the porch light and retrieved the room key. At this time Vineyard and Christy stepped out of the room next door. Vineyard said 'Hello, how is it going.' Appellant replied 'Fine, thank you.' Vineyard then asked if he had just come in from California. Appellant said that he had. Vineyard told him 'We are narcotics officers.' He also told him that he and Christy work drug smuggling. Vineyard testified that the appellant appeared to be nervous at this time. Vineyard then asked him 'if he had any drugs on him.' Appellant said no. Vineyard then asked if he could search him. Appellant said 'Go ahead.' Vineyard patted him down. Vineyard then asked him if he had any drugs in his room. Vineyard testified that he could not remember for sure what was said. The appellant either said 'No, go ahead and look,' or he said no, and then he was asked if he could look around, to which he said go ahead. The appellant unlocked the door and the officer went in and searched the room. After an extensive search the officers found heroin concealed inside a chair cushion. There was no contraband found in 'plain view.'¹ In addition to the furnishings of the motor inn the only other thing found in the room was a suitcase. Vineyard described it as small, black, type suitcase which would fit under the seat on a plane. Appellant and Turner were both arrested. At trial, the appellant did not testify."

679 S.W.2d at 67-68.

The Court of Appeals noted that the court instructed the jury that they should consider the testimony of the witness Vineyard that he had seen the name Dan Guiton on a registration card at the motel not for the purpose of establishing the truth of such assertion but for the limited purpose of showing the motive for the witness Vineyard to place appellant under surveillance. Therefore, the Court of Appeals held that there was no evidence to show to whom room 289 had been rented. In addition the Court found that there was no evidence that the appellant had ever been in the room before nor was there any testimony that the suitcase found in the room was the same, or even similar to the suitcase carried by appellant at the airport.

The State argues in its petition for discretionary review that, viewing the evidence in the light most favorable to the verdict, the only reasonable hypothesis raised by the evidence is that appellant had the exclusive care, custody, control and management of the contraband and knew that the substance was indeed heroin. The State maintains that there is no other reasonable explanation for appellant's evasive and furtive conduct between the time he initially met Tucker at the airport and his arrival at the LaQuinta. Furthermore, the State argues that while there is no testimony in the record that the bag found in room 289 was the same bag carried by appellant when he arrived at DFW from Los Angeles, it is no small coincidence that the appellant arrived in Dallas carrying a small black bag, departed the airport in a cab while carrying the bag, was dropped off by the cabdriver at the LaQuinta, then returned to the airport minus the black bag. Furthermore, the State argues that appellant's actions in retrieving the key to room 289, his answers to the officer's questions, his consent to the officer's entry and search of the room, his action of unlocking the door to room 289 and giving the officers access to the room clearly show his control over the motel room. The State further argues that even if there is an outstanding reasonable hypothesis that someone else entered the room and put the heroin inside the chair cushion, the evidence is still sufficient to show that appellant had joint care, custody, control and management over the heroin because he knew the key to the room was on the porch light and he knew this to be his room. The State asserts that appellant's knowledge that the heroin was in the room is evidenced by the repeated furtive and evasive actions he took between leaving the airport the first time in the taxi and finally arriving at the motel in the Buick.

"In order to establish the unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew that the matter possessed was contraband. Pollan v. State, 612 S.W.2d 594, Tex.Cr.App.; Dubry v. State, 582 S.W.2d 841, Tex.Cr.App. It is not necessary to prove that the accused had exclusive possession of the narcotics in question. Damron v. State, 570 S.W.2d 933, Tex.Cr.App. When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188, Tex.Cr.App.

"The affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Norman v. State, 588 S.W.2d 340, Tex.Cr.App. Among such additional facts which can establish the affirmative link are: the marihuana was in open or plain view, Hughes v....