Humason v. State, 0016-86

Citation728 S.W.2d 363
Decision Date18 March 1987
Docket NumberNo. 0016-86,0016-86
PartiesPaul Allan HUMASON, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Robert G. Turner, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr. and Ned Morris, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

In a nonjury trial, appellant was convicted of intentionally and knowingly possessing less than 28 grams of a controlled substance (cocaine). See V.A.C.S., Article 4476-15, §§ 4.04(a), 4.02(b)(3)(D) (Supp.1987). Punishment was assessed by the court at confinement for three years in the Texas Department of Corrections, probated, and a $500 fine. See V.A.C.S., Article 4476-15, §§ 4.01(2), 4.04(b) (Supp.1987). The Houston (1st) Court of Appeals, after concluding that there was insufficient evidence to "affirmatively link appellant to the cocaine in a manner proving he knowingly possessed it," reversed the conviction and ordered the judgment reformed to show an acquittal. Humason v. State, 699 S.W.2d 922, 923 (Tex.App.--Houston [1st] 1985) (emphasis in original). We granted the State's petition for discretionary review to determine whether the State proved beyond a reasonable doubt that the appellant knowingly possessed cocaine. 1 We will affirm.

I.

Appellant, the sole occupant of a pick-up truck, was stopped by a police officer for speeding at 9:30 p.m. on March 27, 1984. After the police officer discovered that appellant was driving with a suspended driver's license, he arrested appellant, handcuffed him and placed him in a patrol car. The police officer then searched the truck. 2

The officer discovered an unzipped cloth gym bag on the seat next to where appellant had been driving. The bag contained several items, including clothing, a towel, aspirin bottles and a clear vial. The officer removed the clear vial and observed that it contained a white powder residue. The stipulated testimony of a chemist proved that the vial contained .03 grams of cocaine. 3

II.

On direct appeal, appellant contended that "the evidence was insufficient to prove that he intentionally and knowingly possessed cocaine." Id. The Court of Appeals began by recognizing that, when a defendant is charged with unlawful possession of a controlled substance, the State must meet at least two evidentiary requirements: "[first,] the State must prove that [the defendant] exercised care, control, and management over the substance, and [second] that he knew that what he possessed was contraband." Id., citing Payne v. State, 480 S.W.2d 732, 734 (Tex.Cr.App.1972). After reviewing the evidence, the Court of Appeals found that "the State proved only that [appellant] was the truck's sole occupant and that the cocaine was found near him." Id. Given those limited facts, the Court of Appeals held that the evidence was insufficient to establish that appellant knowingly possessed cocaine and ordered the judgment reformed to reflect an acquittal. Id. 4

One member of the Court disagreed and found that appellant's sole occupancy of the truck and his proximity to the bag containing the cocaine provided sufficient evidence to prove beyond a reasonable doubt that appellant knowingly possessed a controlled substance. Id. at 925-26 (Evans, C.J., dissenting).

III.

In establishing the mens rea required for the instant offense, the Legislature has provided that a person must "knowingly or intentionally possess a controlled substance." V.A.C.S., Article 4476-15, § 4.04(a) (Supp.1987) (emphasis added). 5

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

V.T.C.A., Penal Code § 6.03(b) (1974). 6 " 'Possession' means actual care, custody, control or management." V.A.C.S., Article 4476-15, § 1.02(34) (Supp.1977). 7 "A 'controlled substance' means a drug, substance, or immediate precursor listed in Schedules I though V and Penalty Groups 1 through 4 of [the Controlled Substances] Act." V.A.C.S., art. 4476-15, § 1.02(4) (Supp.1977).

By providing that a defendant must, at a minimum, be aware that his conduct or the circumstances surrounding his conduct constitute possession of a controlled substance, see § 6.03(a) & (b), supra, it is not enough for the State to show that a defendant was merely present in the vicinity of a controlled substance. See also V.T.C.A., Penal Code § 6.01(a) & (b) (1974) (requiring voluntary act of possession). The State must provide proof that a defendant intentionally or knowingly exercised actual care, custody, control or management over a controlled substance. Consistent with the mens rea requirement of a possessory offense under the Controlled Substances Act, this Court has held that the State must provide evidence of "affirmative links" between a defendant and a controlled substance. 8 8 McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Cr.App.1985).

As with all elements of an offense, the State must prove the mens rea element of an offense beyond a reasonable doubt. Article 38.03, V.A.C.C.P. (Supp.1987). In reviewing sufficiency of the evidence on appeal, this Court has followed the standard established by the United States Supreme Court: "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Dickey v. State, 693 S.W.2d 386, 387 (Tex.Cr.App.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 99 S.Ct. 2781, 2789, n. 12, 61 L.Ed.2d 560, 574, n. 12 (1979)).

For cases involving circumstantial evidence, an additional principle of appellate review applies. "A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant." Moore v. State, 640 S.W.2d 300, 302 (Tex.Cr.App.1982) (citations omitted). 9 In addition, proof which amounts only to a strong suspicion or mere probability is insufficient to support a conviction. Id. (citations omitted).

In the instant case, the State proved that appellant was the sole occupant of a truck with an unzipped gym bag lying within reach of appellant. The gym bag contained several articles, including a vial with .03 grams of cocaine.

The State argues that the record contains evidence of several affirmative links between appellant and the cocaine from which the jury could conclude beyond a reasonable doubt that appellant knowingly possessed the cocaine. First, appellant was the sole occupant of the truck, thus suggesting that he possessed the contents of the truck. Second, the bag was unzipped and close to appellant, thus suggesting that he had immediate access to the contents of the bag. Third, the substance was cocaine, an expensive drug that is unlikely to be misplaced or left by some other owner.

While a trier of fact could conclude from the combination of these circumstances that appellant knowingly exercised actual care, custody, control or management over the cocaine in the gym bag, it would be just as rational for that same trier of fact to conclude that appellant was entirely unaware of the presence of the cocaine. Without some evidence excluding the equally reasonable hypothesis that appellant was unaware of the presence of the cocaine, the trier of fact could not conclude beyond a reasonable doubt that appellant knowingly possessed the cocaine.

The fact that appellant was the sole occupant of the truck only excludes the hypothesis that appellant was unaware of the contents of the truck if the trier of fact also had proof that appellant recently had sole access to the truck. Cf. Harris v. State, 486 S.W.2d 88, 91 (Tex.Cr.App.1972) (defendant connected to particular vehicle). Mere presence in the vicinity of a controlled substance has never been sufficient to establish joint possession. Waldon v. State, 579 S.W.2d 499, 501 (Tex.Cr.App.1979). That principle of law should be equally as true when there is only one person present in the vicinity of a controlled substance. Otherwise, mere solitary presence in the vicinity of a controlled substance would be sufficient evidence to convict a person of knowingly possessing a controlled substance. We hold that a rational trier of fact could not find that such an inference proves a defendant's knowing possession beyond a reasonable doubt.

The fact that the gym bag was unzipped only excludes the hypothesis that appellant was unaware of the bag's contents if the trier of fact also had proof that appellant had some connection, other than physical proximity, to the bag or its contents. Otherwise, a trier of fact could just as rationally conclude that the defendant was aware of the unzipped bag but unaware of the its contents except for those articles in plain view. 10 Cf. Hughes v. State, 612 S.W.2d 581, 582 (Tex.Cr.App.1981) (listing presence of marihuana in plain view of defendant as affirmative link). We hold that a rational trier of fact could not find that such an inference proves a defendant's knowing possession beyond a reasonable doubt.

The fact that the controlled substance was identified as cocaine only excludes the hypothesis that appellant was unaware of the bag's contents if the trier of fact also had some proof suggesting that appellant was aware of that particular controlled substance. See, e.g., McGaskey v. State, 451 S.W.2d 486 (Tex.Cr.App.1970) (listing apparent intoxication of defendant from marihuana as affirmative link); 11 Hughes, supra (mentioning presence of strong smell of...

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