Hausman v. State, 45004

• Decision Date: 07 June 1972
• Docket Number: No. 45004,45004
• Citation: 480 S.W.2d 721
• Parties: Louis Clyde HAUSMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 721

480 S.W.2d 721

Louis Clyde HAUSMAN, Appellant, v. The STATE of Texas, Appellee.

No. 45004.

Court of Criminal Appeals of Texas.

June 7, 1972.

Stayton, Maloney, Black, Hearne & Babb, by Frank Maloney, Austin, for appellant.

Robert O. Smith, Dist. Atty. Michael J. McCormick, Asst. Dist. Atty., and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for possession of marihuana. After the jury returned a verdict of guilty, punishment was assessed by the court at three years.

At the outset, appellant contends that the evidence is insufficient to support the conviction.

Information was received by Officer Phillips, of the Austin Police Department, from an unnamed informant that James Keck, Homer Atwood and Billie Jean Jones were selling and using marihuana at their residence at 418 West Alpine, Austin. Thereafter, on the same evening at about 10 P.M., a search warrant was obtained for said address. A number of officers went to the scene about 10:30 P.M., and conducted a surveillance until about 12:05 A.M., when the warrant was executed. In addition to the house, a campfire some forty feet west of the dwelling was kept under surveillance. Two persons, Keck (named in search warrant) and Cusak were apprehended by officers as they left the campfire. Officers Imbert and Phillips were the first to arrive at the compfire where they found appellant on a sleeping bag. One of the officers testified that appellant appeared to be asleep and the other officer stated that appellant appeared to be in a tranquil state. One foot from appellant's head, the officers found a brown paper bag with the top rolled up containing marihuana. Seven people (including appellant) were positioned around the campfire.

Possession means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed. Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713, and cases cited therein. The court, in the instant case, instructed the jury in its charge, 'By the term 'possession,' as used herein is meant the actual care, custody, control or management of the item in question.' See Article 725b, Vernon's Ann.P.C. While possession, in a narcotic case, need not be exclusive, Evans v. State, Tex.Cr.App., 456 S.W.2d 911; Gomez v. State, Tex.Cr.App., 365 S.W.2d 165, and facts and circumstances may be sufficient to show an accused and others acted together in possessing a narcotic drug, Ochoa v. State, Tex.Cr.App.,444 S.W.2d 763; Davila v. State, 169 Tex.Cr.R. 502, 335 S.W.2d 610, there must be some affirmative link existing between the person accused and the narcotic drug. Haynes v. State, Tex.Cr.App., 475 S.W.2d 739; Spriggins v. State, Tex.Cr.App., 372 S.W.2d 676; Orosco v. State, 164 Tex.Cr.R. 257, 298 S.W.2d 134.

Presence at the scene of the crime alone being insufficient to show possession of the marihuana, Shortnacy v. State, supra; Reid v. State, Tex.Cr.App., 474 S.W.2d 702, we must determine if there is other evidence which links appellant to the narcotics. Officer Phillips testified that appellant was not under the influence of anything at the time of his arrest. No marihuana was found on appellant's person. No marihuana odor was detected. No furtive gestures were made by appellant. See Kinkle v. State, Tex.Cr.App.,474 S.W.2d 704; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915. Officer Phillips further testified that no marihuana cigarettes, 'roaches,' ¹ or 'roach clips' ² were found in the campfire area.

Reviewing the evidence most favorable to the State, we find the following which tends to implicate appellant. Officer Imbert testified that during the surveillance he observed, through binoculars, persons around the campfire passing a cigarette around and cupping their hands. Witness Imbert further testified that while he could not identify what they were smoking as marihuana, the manner in which they were smoking the cigarette led him to believe it was marihuana. The bag of marihuana was found one foot from appellant's head.

The observation of the officer relative to the smoking of the cigarette is of little, if any, probative value in connecting appellant with the narcotics. The officer was unable to identify appellant as having been present at the time of this observation. There was testimony of much activity around the campfire and no one was able to testify if appellant had been there throughout the evening or when he arrived.

Does the close proximity of appellant to...