Gutierrez v. State, 58125

• Decision Date: 17 December 1980
• Docket Number: No. 58125,No. 1,58125,1
• Parties: Marcus GUTIERREZ, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 57

628 S.W.2d 57

Marcus GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 58125.

Court of Criminal Appeals of Texas, Panel No. 1.

Dec. 17, 1980.

Rehearing Denied Feb. 10, 1982.

Second Motion for Rehearing Denied March 10, 1982.

James A. Rindfuss, Kim I. Manning, on appeal only, San Antonio, for appellant.

Bill M. White, Dist. Atty., & Keith W. Burris, Lawrence R. Linnartz & H. Wayne Campbell, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J. and DOUGLAS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. The punishment, enhanced by a prior conviction, is imprisonment for fifty years.

The appellant, in his first ground of error, contends that the evidence presented at trial is insufficient to support his conviction for the offense of possession of heroin.

The evidence at trial reflects that on January 19, 1977, Officer Montemayor and his partner, Officer Garza, after receiving a phone call, established surveillance at Jack's Ice House. The officers were in separate vehicles and both officers characterized Jack's Ice House as a known drug connection. The officers were expecting to see a maroon 1967 Pontiac LeMans. They had been told by an informant that an Anglo couple and a Mexican couple from Austin were going to buy heroin at Jack's Ice House. An automobile fitting the description was seen stopping at a Pizza Hut located near Jack's Ice House. The car was occupied by a Mexican male and female and an Anglo male and female. The automobile was registered in Austin to one of the females. The appellant was identified as the driver of the vehicle. All four went into the Pizza Hut. After about 15 minutes, the two males left in the LeMans and the officers did not follow them. The two males returned fifteen to twenty minutes later. The two males went inside the Pizza Hut and then after ten to fifteen minutes, they all left.

The police followed the LeMans to Jim's Hamburgers. The driver got out of the automobile and walked back and forth in front of the telephone booth. He then went inside the booth. None of the four people under surveillance purchased anything from Jim's Hamburgers, although one of the females used the restroom. Another twenty to thirty minutes had passed when a maroon Chevrolet pulled up beside the LeMans. The driver of the Chevrolet was Henry Lopez, whom the police described as a dope dealer. The appellant got into the passenger side of the Chevrolet. He remained inside the Chevrolet briefly and then returned to the LeMans. Officer Montemayor testified that he did not see anything exchanged between Lopez and the appellant. Both vehicles then departed. Officer Montemayor followed Lopez and later saw Lopez counting a large sum of money. Officer Montemayor stated that he was informed by an informant that a drug transaction had been completed.

Officer Garza, along with other police, followed the appellant and later stopped the appellant. As the police rushed the automobile, a small package was dropped out the window by the passenger sitting in the right rear seat of the vehicle. The package was later determined to contain heroin. A search of the vehicle and of all the passengers revealed no other contraband.

Lopez was called to testify by the State. He denied selling heroin to the appellant. The State then claimed surprise and impeached Lopez by introducing in evidence his testimony given at a hearing on appellant's motion to suppress evidence. At the hearing, Lopez testified that he sold heroin to the appellant. At the trial, Lopez denied selling the heroin, stating that he told the earlier version because he was in withdrawal and because of police pressure. The trial court instructed the jury that they could only use Lopez's testimony at the hearing for impeachment purposes. The appellant did not present any evidence.

In order for the offense of possession of heroin to be proven, the evidence must show that the accused exercised care, control, and management over the drug and that the accused knew that the drug was contraband. Morr v. State, 587 S.W.2d 711 (Tex.Cr.App.1979). The evidence need not establish that the accused was in exclusive control of the drug; evidence of joint possession is sufficient. Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979). Also, proof of possession may be shown by circumstantial evidence if the circumstances exclude every other reasonable hypothesis except that of the guilt of the accused. However, a finding of joint possession cannot be based solely on proof of mere presence at the place where contraband is found. Heltcel v. State, 583 S.W.2d 791 (Tex.Cr.App.1979). There must be an affirmative link between the accused and the drug in such a manner, and to such an extent, that a reasonable inference may arise that the accused knew of the drug's existence and its whereabouts. Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973). This link can be established by additional independent facts and circumstances which indicate the accused's knowledge of the drug as well as control over it. Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973).

In the case at bar, reviewing the evidence in a light most favorable to the verdict, we conclude that the necessary affirmative link was established. The evidence reflects that the police were on the lookout for a specifically described automobile and that the appellant was driving a vehicle fitting that description. Appellant's course of action through the entire time he was observed by the police was unusual and suspicious. The appellant met with a known drug dealer, Lopez, for a very brief time. Lopez was seen counting a large sum of money shortly thereafter; Lopez's denial of selling heroin to the appellant was impeached. Finally, heroin was dropped to the pavement from the automobile appellant was driving. These independent and additional facts and circumstances, when viewed in their totality, indicate the appellant's knowledge and control of the heroin. The jury could reasonably infer that the accused knew of the drug's existence and its whereabouts. See Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979); Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975); Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Hineline v. State, supra; Powell v. State, supra. Appellant's first ground of error is overruled.

The appellant in his second ground of error contends that the trial court improperly instructed the jury during the punishment phase of the trial. The appellant's conviction was enhanced by a single prior felony conviction. The trial court instructed the jury that if it found all of the allegations set out in the second paragraph of the indictment to be true, it should assess punishment as a first-degree felony. The jury imposed punishment at imprisonment for fifty years.

The offense of possession of heroin is a second-degree felony. Art. 4476-15, Secs. 4.02, 4.04. V.A.C.S. Convictions obtained under the Controlled Substances Act may be enhanced under the Texas Penal Code. Young v. State, 552 S.W.2d 441 (Tex.Cr.App.1977). The Texas Penal Code in Sec. 12.42, provides in part as follows:

"(a) If it be shown on the trial of a third degree felony the defendant has once before been convicted of any felony, on conviction, he shall be punished for a second-degree felony.

(b) If it be shown on the trial of a second degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony."

Thus, it would appear that the State correctly enhanced the appellant's second-degree felony conviction under the Controlled Substances Act to a first-degree felony under V.T.C.A. Penal Code, Sec. 12.42(b). However, the appellant argues that the language of V.T.C.A. Penal Code, Sec. 12.41 controls. That section provides, in part, as follows:

"For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:

(1) 'felony of the third degree' if confinement in a penitentiary is affixed to the offense as a possible punishment;"

The appellant contends that his conviction was obtained under the Controlled Substances Act, and a prosecution outside the Texas Penal Code. Therefore, he argues his conviction, to be enhanced, must be considered a third-degree felony. Thus, the third degree felony would be enhanced to a second-degree felony and not a first degree felony.

We do not agree with appellant's interpretation of this provision. Section 12.41 applies only to Subchapter D concerning exceptional sentences. Thus, when Section 12.42 refers to a conviction, it does not refer to the primary conviction which will be enhanced, but rather is limited to the convictions which will be used for enhancement purposes. Section 12.41 applies only to the enhancing convictions. To determine whether the primary offense defined outside the Texas Penal Code is punishable under this chapter, one must look to V.T.C.A. Penal Code, Section 1.03(b). It provides:

"The provisions of Title 1, 2, and 3 of this Code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this Code shall be applicable unless the punishment is classified in accordance with this Code."

Section 12.41 is within Title 3 of the penal Code and the punishment for possession of heroin is classified in accordance with the Penal Code. Thus, as noted earlier, the offense may be enhanced. The second degree felony was properly enhanced to a first-degree felony. The appellant's ground of error is without merit. See Practice Commentary, Searcy and Patterson, V.T.C.A. Penal Code, Sec. 12.41. Also, see Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976).

In appellant's final ground of...