Hernandez v. State

• Decision Date: 07 July 1976
• Docket Number: No. 51952,51952
• Citation: 538 S.W.2d 127
• Parties: Jerry G. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 127

538 S.W.2d 127

Jerry G. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 51952.

Court of Criminal Appeals of Texas.

July 7, 1976.

Douglas M. Kennedy, Jack E. Hunter, Corpus Christi, for appellant.

Jot B. Law, County Atty., pro tem., Rockport, John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner:

This is an appeal from an order revoking probation.

On September 6, 1974, the appellant was found guilty of the offense of burglary of a vehicle; the punishment assessed was imprisonment for 3 years and a fine of $200. The imposition of sentence was suspended and the appellant was granted probation.

On February 13, 1975, probation was revoked after the court found the appellant had violated a condition of probation when he on December 15, 1974, unlawfully, intentionally and knowingly possessed a usable quantity of marihuana. Sentence was imposed on April 30, 1975.

The appellant asserts that the trial court abused its discretion in revoking probation. He contends that illegally obtained evidence was admitted and that the evidence failed to show he possessed marihuana or in the alternative that the evidence failed to show he possessed a usable amount of marihuana. He also contends the court erred in refusing his request to recall two prosecution witnesses.

On December 15, 1974, Sam Arrington, a police officer in Aransas Pass, observed an automobile in which there were two persons leave the Sea Breeze Motel. He then received a call concerning a window peeper at the Sea Breeze Motel and in connection with this incident was given a license plate number and the description of a vehicle.

He then found the automobile which had been described to him parked near the Shamrock restaurant and bar. This was the same automobile that he had seen leaving the Sea Breeze Motel. Officers placed the automobile under surveillance. At about 10:00 p. m. the appellant and his brother got in the automobile and left. The officers stopped the automobile at a nearby intersection.

Officer Arrington stopped behind and Officer Keller stopped in front of the automobile driven by the appellant. Officer Arrington went to the driver's side of the automobile and questioned the appellant. Officer Keller went to the passenger side of the automobile and asked Juan Hernandez to step out of the automobile. By the light of his flashlight and a street light where the car was stopped Keller saw a cellophane bag on the floorboard of the automobile about five inches ahead of the front passenger's seat. The bag contained a green plant substance which Keller thought was marihuana. Arrington stated that there was also a matchbox containing roaches in the "glovebox" of the car; he said the matchbox was not visible to the driver. Officer Hudgens stayed behind the car on the passenger's side as a precautionary measure. He did not see anything untoward in the car until after the appellant and his brother had been arrested and placed in one of the patrol cars. He then drove the car which had been driven by the appellant to the police station. He testified that when he was driving the car he found on the dashboard a matchbox and an ashtray, both containing what he believed to be marihuana roaches.

The officers testified fully concerning the stopping of the automobile and finding the marihuana before any objection was made that it was unlawfully obtained. The appellant's objection made after all of this testimony had been elicited came too late.

If the marihuana was obtained unlawfully, the error in admitting it in evidence was waived by the failure to make a timely objection. Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); Smith v. State, 456 S.W.2d 90 (Tex.Cr.App.1970). This contention is overruled.

Appellant next contends the trial court erred in refusing to allow him to recall Officers Arrington and Keller. Officer Keller had earlier testified and was cross-examined; Officer Arrington had already been recalled once and was cross-examined each time he testified.

Appellant's stated purpose in recalling the officers was to probe the circumstances surrounding the arrest and seizure of marihuana in order to show that the marihuana was unlawfully obtained. We concluded in the previous ground of error that even if the marihuana had been obtained unlawfully, the error in admitting it in evidence was waived by the failure to make a timely objection. Therefore, appellant would have been in no better position even if he had recalled the officers and through their testimony clearly established that the marihuana had been unlawfully obtained. The error, if any, in refusing to allow the officers to be recalled, was harmless. This contention is overruled.

Appellant next contends that the evidence was insufficient to show that he possessed marihuana.

To establish 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 the matter possessed was contraband. Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972); Rodriguez v. State, 372 S.W.2d 541 (Tex.Cr.App.1963).

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972); Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972). However, a finding of joint possession cannot be justified solely on the basis of proof of mere presence at a place where contraband is being used or possessed. Payne v. State, supra; Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). It was stated in Brown v. State, 481 P.2d 475 (Okl.Cr.1971), that "[p]ossession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed." Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and of its whereabouts. Payne v. State, supra, and the cases there cited; Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973). This affirmative link is established by showing additional facts and circumstances which indicate the accused's knowledge and control. Hineline v. State, supra; Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973); Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974).

It was established in Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975), that an order revoking probation must be supported by a preponderance of the evidence.

" . . . in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation . . ." 517 S.W.2d 293 at 298.

Of course the State is still required to sustain the burden of proving by a preponderance of the evidence the allegations of the motion to revoke probation. Regardless of the burden of proof, in a case such as the one before us, the accused must be affirmatively linked to the contraband in a fashion that supports a reasonable inference that he knew he was in possession of the contraband.

It was uncontroverted that the car was not owned by either appellant or Juan Hernandez, his brother. Juan testified that he had borrowed the car from his uncle earlier in the day and had been...