Hughes v. State

• Decision Date: 11 March 1981
• Docket Number: No. 59755,No. 3,59755,3
• Citation: 612 S.W.2d 581
• Parties: Willie Lee HUGHES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 581

612 S.W.2d 581

Willie Lee HUGHES, Appellant, v. The STATE of Texas, Appellee.

No. 59755.

Court of Criminal Appeals of Texas, Panel No. 3.

March 11, 1981.

Robert Nino and Hector F. Barrientos, Houston, for appellant.

Fred M. Flecman, Asst. Dist. Atty., Richmond, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction of possession of more than four ounces of marihuana. Punishment is imprisonment for ten years, probated, and a fine of $5,000.

Appellant contends the evidence is insufficient to establish that she had possession and control of the marihuana. Appellant also asserts that the trial court erred in failing to include a requested charge on circumstantial evidence.

On November 19, 1976, several Houston police officers arrived at appellant's residence to execute a search warrant. The validity of the search warrant is not disputed. For safety precautions, Officer Delora Lott approached the house and fictitiously requested to use the telephone. Appellant's daughter refused to allow Officer Lott inside. When appellant came to the door, the officers identified themselves and their purpose. Appellant turned and ran from the door. The officers then forcibly entered the residence, followed appellant into a bedroom, and apprehended appellant. A pistol was found in the bathrobe appellant was wearing. Appellant and her three children were then seated in the living room. Appellant was read her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After securing the residence, the officers initiated their search. On a coffee table, in the den, Lott discovered numerous marihuana "bricks." The total weight of the marihuana was over fifty pounds. In the bedroom where appellant was apprehended, Officer Bengley found a paper bag containing marihuana. Also found in a jacket hanging in one of the closets were a marihuana cigarette and a pipe containing marihuana residue. Appellant's residency of the house is undisputed.

At trial, Officers Lott and Herbert Lord testified. Both officers stated that the large amount of marihuana located inside the house was clearly visible. The marihuana was approximately fifteen feet from the front door of the residence and plainly visible. Lott testified that the marihuana was similar to hay, but that it had a very strong and distinct odor.

In cases involving possession of contraband, the State must show that (a) the defendant exercised, either singularly or jointly, care, custody, control, and management over the contraband, and (b) the defendant knew that what he possessed was contraband. Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). However, where the defendant is not in exclusive possession of the premises where the contraband is found, it cannot be concluded that she knew of or controlled the contraband unless there are additional independent facts and circumstances which affirmatively link her to the contraband. Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). This affirmative link must reasonably allow one to infer the defendant's knowledge and control of the contraband. Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979). This "affirmative link" has been established when the contraband is in plain view, Herrera v. State, 561 S.W.2d 175 (Tex.Cr.App.1978); the amount of marihuana found, Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); the accessibility of the contraband to the accused, Hahn v. State, 502 S.W.2d 724 (Tex.Cr.App.1973); and facts showing defendant's residence at the place where the contraband is found, Herrera v. State, supra.

The evidence, which this Court must view in the light most favorable to the verdict, is clearly sufficient to link appellant affirmatively to the marihuana. Officer Lott testified that a large amount of marihuana was in plain view on a coffee table in the den, and that it had a strong, distinct odor. Officer Lord substantiated Lott when, in response to whether he saw any contraband he testified:

"A. Okay, the den area from where I was standing there was a doorway that opened into, I guess what you considered a closed patio area, and there was a table and what appeared to be marijuana laying on the table and on the floor next to the table.

"Q. Was it wrapped up or loose or what?

"A. Well, it was in two or three different forms, some was in a black plastic bag on the floor and some others in a trunk, metal trunk, and some were just lying on the top of the table in clear plastic wraps.

" * * *

"Q. How far away were you from the marijuana?

"A. Maybe 15 feet at the most.

"Q. Did you see it standing from the front door?

"A. Yes."

The evidence, which this Court must view in the light most favorable to the verdict, is clearly sufficient to establish appellant's knowledge. Over fifty pounds of marihuana in a den area is hard, if not impossible, to overlook.

The dissent's reliance on the term "enclosed patio" is a misconstruction. That term was used only to indicate the area where the contraband was found. It was used descriptively to show an area that had been incorporated as an addition onto the house a common method of enlarging the living space in homes. (Officer Lott called it a den. It contained furniture and a television set.) Moreover, there is no evidence that there was any door, much less a closed one, between the "enclosed patio" and the rest of the house.

The dissent also argues that lack of proof of residency categorically removes the "care, control, or management" element. However, appellant's residency is but a contributing factor in determining if she exercised care, custody, or management. See, Herrera v. State, supra; Pierce v. State, 577 S.W.2d 253, 255 (Tex.Cr.App.1979). Appellant's ground of error specifically attacks her actual control over the marihuana. Although not proven at trial, the issue of appellant's residency at the house is not only assumed at trial, but admitted on appeal. Moreover, appellant admitted her residency during the punishment stage. Regardless of the ownership or appellant's status regarding the house, such facts have been held sufficient to sustain possession. See, e. g., Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1975) (State's motion for rehearing) (appellant's presence and marihuana in plain view); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976) (appellant's presence and marihuana in plain view sufficient to revoke probation); Zamora v. State, 508 S.W.2d 819 (Tex.Cr.App.1974).

Even ignoring these facts, it is clear that at the time of the search, appellant was in sole possession and control of the premises. When the officers secured the house, only appellant and her three children were inside. Appellant was wearing a bathrobe. As the only adult present, the jury can reasonably conclude that appellant had control of the premises. Appellant's conduct in refusing entry or use of the phone substantiates the care, control, and management of the home. In addition, the record is devoid of any evidence that anyone else except the "Hughes" or appellant occupied or had access to the house. See, Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). Viewing this evidence most favorably, the verdict is upheld.

In her only other ground of error, appellant contends that the trial court erred in refusing to include a requested charge on circumstantial evidence. However, appellant entered no written objection to the court nor is the special requested charge in the record on appeal. Having failed to comply with Articles 36.14 and 36.15, V.A.C.C.P. (1977), appellant has forfeited the right to challenge any error in the court's charge on appeal. Johnson v. State, 467 S.W.2d 431 (Tex.Cr.App.1971); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1971). Thus, the ground of error is overruled.

The judgment is affirmed.

TEAGUE, Judge, dissenting.

From this most difficult to read record, ¹ I learn that appellant was convicted by a jury of the felony offense of knowingly possessing more than four ounces of marihuana. The trial court assessed punishment at 10 years' confinement in the Texas Department of Corrections but probated same. ²

Appellant raises two grounds of error contending (1) the evidence is insufficient to sustain the conviction and (2) she was entitled to have submitted to the jury a charge on the law of circumstantial evidence.

In reviewing appellant's first contention, ^* it is necessary, of course, to review the evidence presented in the light most favorable to the verdict of the jury, see Ahearn v. State, 588 S.W.2d 327 (Tex.Cr.App.1979); Jones v. State, 582 S.W.2d 129 (Tex.Cr.App.1979); Owens v. State, 576 S.W.2d 859 (Tex.Cr.App.1979); Tatom v. State, 555 S.W.2d 459 (Tex.Cr.App.1977); Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974), and I approach this case with that rule of law in mind.

Armed with a search warrant from an unnamed magistrate in Harris County for a house of a "Mr. Hughes," or "the Hughes residence," members of the Houston Police Department went to the Briargate Subdivision in the southwest area of Houston to the street address of 6634 Roswell in Fort Bend County. In testifying, the witnesses for the State used the terms "house" and "residence" interchangeably when responding to questions. The "house" or "residence" was a "large home." "Mr. Hughes" was assumed by the witnesses for the State to be the husband of appellant. The "house" or "residence" was assumed by the witnesses for the State to be the residence of appellant, her husband and their three children, ³ but none of this was ever proved by any direct evidence.

Local assistance was requested and obtained, and a small law enforcement posse went to the residence in the early evening hours of the day in question. The absence of "Mr. Hughes"...