Harvey v. State, 45253

• Decision Date: 22 November 1972
• Docket Number: No. 45253,45253
• Citation: 487 S.W.2d 75
• Parties: Willis Elbert HARVEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 75

487 S.W.2d 75

Willis Elbert HARVEY, Appellant, v. The STATE of Texas, Appellee.

No. 45253.

Court of Criminal Appeals of Texas.

Nov. 22, 1972.

Howard D. Pattison, Dallas (by appointment), for appellant.

Henry Wade, Dist. Atty., Catharine T. Hill, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for possession of marihuana where the penalty was assessed at life imprisonment by the court following a verdict of guilty.

At the outset we are confronted with a challenge to the sufficiency of the evidence to sustain the conviction.

Officer Cannaday of the Dallas Police Department testified that on November 23, 1970 he and Officer Johnson observed a speeding Cadillac automobile. The vehicle was pursued and stopped by Officer Johnson prior to Cannaday's arrival. The driver gave them a driver's license bearing the name of the appellant and, upon checking with headquarters, they learned appellant was wanted on 'a federal warrant.' Subsequently, they learned the driver was not the appellant and he was released. On November 24, 1970, having obtained pictures of the appellant, the officers began searching for the appellant in the same general neighborhood where the Cadillac had been stopped.

Cannaday testified that about 2:15 p.m., he observed the appellant in the back seat of a 1964 Lincoln Continental automobile and gave chase and that, while being pursued, the appellant tried 'to scoot down in the back seat' and 'leaned forward in the seat as if he were placing something on the floorboard or under the front seat.' After stopping the car, the officer had the driver Jackson and the appellant step from the car and he searched them. Having received information that appellant possessed a firearm, Cannaday searched the area in the automobile where the appellant had been sitting and found two needles with holders and two eyedropper syringes, a metal spoon, a pair of tweezers, a needle and two needle holders, a woman's hose, a rag and a paper sack. After the discovery of these items, Cannaday rolled up appellant's sleeves and found a blood spot on his left arm.

Subsequently, Officer Johnson arrived, searched the car again and found a Kleenex box on the dashboard directly in front of the driver's seat. Inside such box was a matchbox which contained a green vegetable substance.

Officer Johnson generally corroborated Cannaday's testimony. He did relate, without objection, that while searching for the appellant on November 24th, a citizen had informed him and Cannaday that the appellant had just run behind a nearby grocery store 'and the housing project and the house across the fence.' Returning to their patrol cars, the officers continued their search and, subsequently, Johnson received the report that Cannaday was in pursuit of the Lincoln Continental. Johnson testified that he arrived on the scene of the arrest before Cannaday had removed Jackson and the appellant from the car.

The chain of custody of the green vegetable substance was established and the chemist, Dr. Morton, testified the substance was 1.717 grams of marihuana.

Appellant called his sister-in-law, who testified that on November 24, 1970, the appellant, who had returned from California two or three weeks earlier, was at her house at 2 p.m. when Perry Jackson, whom neither she nor the appellant knew, came by looking for a man named Woods; that when Jackson left, the appellant asked him for a 'ride up on Hancock' and Jackson agreed; that when he left, the appellant had no paper bag, matchbox, etc. The arrest took place at approximately 2:15 p.m.

We must determine from these facts whether the same is sufficient to show possession of the marihuana in the appellant. Whatever other offense he may have been guilty of, the charge here is possession of marihuana.

The proper disposition of the instant case is controlled by Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972), wherein, as here, the contraband was found in a box 'located on the left side of the dashboard of a car in which appellant was a passenger.' In holding the evidence insufficient, the court wrote:

'Possession need not be exclusive, and evidence which shows that the accused jointly possessed the contraband with another is sufficient. E.g. Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713. Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763. However, proof of mere presence at a place where narcotics are being used or possessed does not, standing alone, justify a finding of joint possession. Kinkle v. State, Tex.Cr.App., 474 S.W.2d 704; Reid v. State, Tex.Cr.App., 474 S.W.2d 702; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915; Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56. 'Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed.' Brown v. State, 481 P.2d 475 (Okl.Cr.1971). Whether the case is tried on the theory of joint or sole possession, the evidence must affirmatively link the accused to the drug he is alleged to have possessed. Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. See also, Shortnacy v. State, supra; Kinkle v. State, supra; Reid v. State, supra; State v. Carr, 8 Ariz.App. 300, 445 P.2d 857 (1968); State v. Oare, 249 Or. 597, 439 P.2d 885 (1968); State v....