Hahn v. State
| Decision Date | 19 December 1973 |
| Docket Number | No. 46817,46817 |
| Citation | 502 S.W.2d 724 |
| Parties | Dennis Wade HAHN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jesse Holloway, Abilene, for appellant.
Ed. Paynter, Dist. Atty., and Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
Appellant appeals from a conviction of unlawful possession of marihuana in a trial before the court without a jury. Punishment was assessed at two years, probated.
In his first ground, appellant challenges the sufficiency of the evidence to support the conviction.
Officers Deal and Hood of the Texas Department of Public Safety testified that while they were on patrol in the neighborhood of Merkel, Taylor County, a car passed them on Interstate Highway 20 with its muffler making an unusually loud noise. As the officers started after the car, the latter increased its speed to 85 miles per hour in a 70 mile zone. In a short while the car stopped and the officers drove up beside it. Appellant, who had a Texas operator's license, was driving the speeding car with two hitchhikers as passengers. Appellant showed the officers his Texas driver's license, and told Deal and Hood that he was a Marine on leave from his base in South Carolina, and had borrowed the car from a friend there to drive to his home in Odessa. Since the car had an out of state license, the officers gave him a ticket for speeding and told him to follow them to the justice of the peace office in Merkel, to pay a fine for speeding or post bond. 1
At the office of the justice of the peace, Officer Deal asked appellant if he had anything with him to prove his authority to use the out of state automobile. Appellant got back in the car and opened the console between the front (bucket) seats. As he did this, Officer Deal, who was standing beside the front door, saw a brass pipe in the console, and a bayonet in a scabbard riveted to the dashboard to the right of the steering column. The pipe was recognized by Deal as being the type used for smoking marihuana. Deal saw what appeared to be marihuana residue in the pipe. Officer Hood, on the other side of the car, saw Deal pick up the pipe, which he also recognized as a type used for smoking marihuana and, looking in the car, saw the bayonet and a knife which was sticking out from under the driver's seat. As he reached in and pulled out the knife, a plastic bag came out also. It was shown at the trial by competent evidence that this bag contained 19.26 grams of marihuana, and that the pipe contained .03 grams of burned marihuana residue.
The appellant did not testify; however, a written statement made by him and admitted without objection stated that the hitchhikers riding with him 'had no knowledge as to what was in the automobile.'
The thrust of appellant's contention under his insufficiency of evidence ground is that the car 'did not belong to appellant inasmuch as the automobile was borrowed.' He says that the only evidence of possession of the marihuana by appellant is that it was found in a car which appellant was driving. He cites, as his authorities, Payne v. State, Tex.Cr.App., 480 S.W.2d 732, and Harvey v. State, Tex.Cr.App., 487 S.W.2d 75.
Neither of these cases is in point. In Payne, the defendant was a passenger in the right front seat of the car driven by one McKelvey and registered to one Davis. In Harvey, the defendant was seated in the right rear seat of a car in which marihuana was found on the dashboard immediately in front of the driver. In neither case did the evidence affirmatively link the accused to the drug he was alleged to possess. There was no evidence in either case which would show directly or circumstantially that the accused knew or should have known of the presence of marihuana. Both cases were reversed for insufficiency of the evidence to prove possession.
The proof showed that appellant had driven this car from South Carolina to Texas, a distance of many hundreds of miles. The pipe contained marihuana ashes. The bag of marihuana was under...
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