Hernandez v. State

• Decision Date: 22 December 1993
• Docket Number: No. 06-93-00061-CR,06-93-00061-CR
• Citation: 867 S.W.2d 900
• Parties: Irma Montez HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 900

867 S.W.2d 900

Irma Montez HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 06-93-00061-CR.

Court of Appeals of Texas,

Texarkana.

Dec. 22, 1993.

Cora Meyer, Carthage, for appellant.

A. Morris Samford, Jr., Crim. Dist. Atty., Carthage, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

A jury convicted Irma Hernandez of possession of marihuana and set her punishment at four years' confinement, probated for six years. On appeal she contends that the evidence was insufficient to support her conviction. She also contends that the trial court erred in refusing to submit her requested jury instructions on possession and voluntariness, that the court erred in admitting the marihuana in evidence because it was the product of an illegal search and seizure, that the judgment should be reversed because the state withheld evidence, and that the court erred in refusing her motion for a mistrial after the jury indicated it could not reach a verdict. We overrule these contentions and affirm the judgment.

On November 2, 1989, Officers Barry Washington and Lee Richards of the Texas Department of Public Safety were on routine traffic patrol on Highway 59 in Panola County. Both officers had been active in a DPS criminal interdiction program designed to help officers recognize criminal activity when they make stops for routine traffic offenses. On this day, Richards was riding with and assisting Washington.

The officers testified that they were pursuing another vehicle when they saw a pickup truck driven by Hernandez pull out onto Highway 59 in front of a large truck. They stopped Hernandez for failure to yield the right of way.

Washington asked Hernandez for her driver's license and insurance papers, and she produced them. As a normal safety measure, Richards stood nearby and watched from approximately six feet away, while Washington investigated. Another woman was a passenger in the truck with Hernandez. Both officers testified that the other woman was cooperative, but spoke little English, making communication with her difficult. Washington asked Hernandez to get out of the truck so they could stand behind it while they investigated what was then a routine traffic stop.

While standing behind the truck and questioning Hernandez, Washington smelled the odor of "green" marihuana (apparently newly cut marihuana). He testified that green marihuana has a very distinctive odor and that he recognized the smell of it from his experience on many prior occasions.

Washington testified that, although he told Hernandez that she did not have to consent to a search of the truck, she did orally consent. Hernandez denied that her consent was either asked for or given. In any event, Washington searched the luggage container in the bed of the truck and found nothing but clothing. Washington stated that because the odor of marihuana was very strong at the rear of the truck, he looked and then crawled underneath the rear of the truck. He noticed that, although the spare tire was deflated, he could feel something hard in it. He also noticed that this tire had a new valve stem and scratches around the rim. He had found spare tires with marihuana inside them on other occasions. Based on his observations, he explained his suspicions to Hernandez and advised her of her rights. After notifying the sheriff's office, Washington drove the patrol car, with Hernandez as a passenger, and Richards drove the truck with the truck's other passenger, to an Exxon service station. Washington testified that the spare tire had a lock on it and that the key to the lock was on the same key ring Hernandez had and which also contained the ignition key. He further stated that Hernandez opened the lock to the tire with this key. Hernandez denied that she had a key to the spare tire. She said the officers and station attendants cut the lock off by using a torch. Inside the tire the officers discovered eighteen foil wrapped packages of what was later confirmed to be green marihuana, weighing a total of 16.1 pounds.

Hernandez argues that the evidence is insufficient to support a finding that she knowingly exercised care, control, and management of the marihuana.

In reviewing the legal sufficiency of the evidence in a criminal case, we determine, after viewing the evidence in the light most favorable to the jury's verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). In doing so, we do not resolve conflicts in the evidence or weigh the credibility of witnesses. That is the function of the jury, which may accept or reject all or part of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). Any inconsistencies in the evidence are resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In assessing the sufficiency of the evidence, we review all the evidence admitted for the jury to consider, whether properly or erroneously admitted. Gribble v. State, 808 S.W.2d 65, 68 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991); Collins v. State, 602 S.W.2d 537, 539 (Tex.Crim.App.1980).

To convict a defendant of unlawful possession of marihuana, the State must adduce sufficient evidence to prove that the defendant exercised care, control, and management over the marihuana, and that the defendant knew that the matter possessed was marihuana. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. [Panel Op.] 1981). The State need not prove that the defendant had exclusive possession of the contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985); Rhyne v. State, 620 S.W.2d at 601. Where the defendant is not in exclusive possession of the place where the contraband is found, however, a court may not conclude that the defendant had knowledge and control over the contraband unless there are additional independent facts and circumstances affirmatively linking the defendant to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); McGoldrick v. State, 682 S.W.2d at 578; Rhyne v. State, 620 S.W.2d at 601. Mere possession of the vehicle in which contraband is found, absent these additional facts and circumstances, will not support a conviction for possession. See Marsh v. State, 684 S.W.2d 676 (Tex.Crim.App.1984); Watson v. State, 752 S.W.2d 217, 222-23 (Tex.App.--San Antonio 1988, pet. ref'd). ¹

Circumstances that may link an accused to contraband include (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and the accessibility of the contraband; (4) accused under the influence of contraband when arrested; (5) accused's possession of other contraband when arrested; (6) accused's incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband or drug paraphernalia, not included in the charge; (11) accused's ownership or right to possession of the place where the controlled substance was found; (12) drugs found in an enclosed place. Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd). Evidence affirmatively connecting the accused to the contraband must amount to more than mere conjecture or speculation. Dickey v. State, 693 S.W.2d 386, 389 (Tex.Crim.App.1984). At issue here, then, is whether additional facts and circumstances affirmatively link Hernandez to the pickup truck and, more specifically, to the spare tire where the marihuana was discovered.

The undisputed evidence shows that Hernandez had borrowed the truck from a friend in Wisconsin to drive to Weslaco, Texas for her (Hernandez's) brother's funeral. She had been to Weslaco for some time and was returning to Wisconsin when she was stopped. At the time of the stop, she had been in possession of the truck for at least twenty-four days, from October 10 or earlier until the date of the arrest, November 2. Officer Washington testified that Hernandez had the key to the lock for the spare tire on the same key ring as the ignition key, a clear link between Hernandez and the contraband that evidences access, control, and management. Hernandez contradicted this testimony at trial, and Washington did not mention the key or the lock in his case report or his property inventory. Neither the lock nor the key, nor pictures of them, were available as evidence at trial. In addition, the other officer at the scene, Richards, who essentially acted as an observer during the stop, testified that he did not remember if there was a lock on the spare tire. Conflicts in the evidence, however, are for the trier of fact to reconcile. On appeal they will be resolved in favor of the verdict and not "second guessed" by this court. Adelman v. State, 828 S.W.2d at 421; Moreno v. State, 755 S.W.2d at 867.

Hernandez argues that several persons, most unnamed, had access to the truck. The relevant issue, however, is who had access to the spare tire. The marihuana was found in an enclosed place, secured inside the spare tire, which was itself secured to the truck by a lock. Hernandez's possession of the key to the lock on the spare tire establishes an affirmative link between her and the contraband and implies control over the marihuana. Christopher v. State, 639 S.W.2d 932, 935 (Tex.Crim.App. [Panel Op.] 1982). There was no evidence that anyone but Hernandez had a key to the spare tire and, undeniably, she had clear access to and control of the truck for a lengthy time before the stop and arrest.

In addition, Officer Washington testified there was a strong odor of green...