Marsh v. State

• Decision Date: 24 October 1984
• Docket Number: No. 169-82,169-82
• Parties: Robert L. MARSH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 676

684 S.W.2d 676

Robert L. MARSH, Appellant, v. The STATE of Texas, Appellee.

No. 169-82.

Court of Criminal Appeals of Texas En Banc.

Oct. 24, 1984.

Don Ervin, Robert W. Tarrant, Houston, for appellant.

William Meitzen, Dist. Atty., and Thomas R. Culver, III, Asst. Dist. Atty., Richmond, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of possession of over four ounces of marihuana and assessed punishment at ten years' confinement and a $5000.00 fine. The Court of Appeals for the First Supreme Judicial District, 630 S.W.2d 305 affirmed the conviction. We granted appellant's petition for discretionary review in light of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), but Robbins has since been disapproved. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We will discuss the questions raised by appellant in light of applicable law.

On the evening of March 27, 1978, Texas Ranger Ray Scholton was fishing on the 4444 ranch in Fort Bend County. Scholton was permitted to fish on the ranch in return for keeping an eye out for trespassers and cattle thieves. Shortly before midnight Scholton saw "a lot of activity" near the ranch's grass landing strip, about 1/4 of a mile away. He saw several people whom he could not identify, a Cadillac, and a camper-equipped pickup truck near the strip. He also saw flares and flashlights.

Scholton testified that he did not know whether the people he saw were trespassing or had permission to be on the land, but he suspected illegal activity.

Scholton left the ranch and drove four miles to Simonton, where he telephoned the Fort Bend County Sheriff's Department. He drove back on Guyler Road toward the ranch. He stopped next to some cattle pens 200 yards or less from the landing strip, stayed there for 2 or 3 minutes, and saw an airplane circling low overhead.

Scholton admitted on cross-examination that he had written in his offense report that Robbie Pearson, the son of the owner, seemed to be in control of the premises. He testified that a week earlier Pearson had told him that he was waiting for a friend to fly an aircraft into the ranch at night. The record is not clear whether this particular night was supposed to be the night immediately preceding the offense or a night a week prior to the offense. However, Scholton knew that the friend had not arrived by the time of the instant events.

Scholton left and drove about four miles to Wallis, where he exchanged his pickup truck for a car with a police radio. He picked up Deputy Sheriff Larry Lee and drove back on Guyler road toward the ranch. He parked the car on the side of the road about 1 1/2 miles from a gate entrance to the ranch.

Soon after this, Scholton and Lee saw the headlights of two vehicles coming from the ranch toward their car. When they passed Scholton's car he identified them as a Cadillac and a pickup truck with camper. Scholton testified that he recognized the Cadillac as the same car he had seen on the ranch a week before. Pearson and another man to whom Scholton had been introduced had been standing beside the Cadillac at that time and Scholton testified he knew that the car was permitted on the ranch at that time.

Scholton and Lee followed both vehicles and continuously tried, without success, to contact a marked police car to stop them. After a few miles the Cadillac continued east and the pickup turned north; Scholton followed the truck.

Appellant was the driver of the pickup truck. He testified that he had pulled off the road and stopped because the officers flashed the lights of their car and drove up very close to his rear bumper. Scholton and Lee testified that they did not flash their lights and that appellant had pulled off the road of his own accord.

Scholton pulled in behind the truck, approached the driver's side with a rifle, and ordered the driver out. Lee approached the passenger side of the truck with his gun in hand and ordered the passengers out. Appellant, another man, and their wives, were in the pick-up. Scholton testified that at that time none of the people were free to leave. Scholton asked appellant for identification. Appellant stated that he did not have any. Scholton said he wanted to find out if they had violated the law and "had a truck load of contraband." Scholton also testified that he shined his flashlight into the back of the pickup and observed a tarpaulin covering some type of cargo. Appellant told Scholton that the vehicle contained feed or fertilizer. Scholton asked appellant to open the rear of the pickup. Appellant refused and asked if Scholton had a search warrant. Appellant asked Scholton to read him his Miranda rights and eventually the camper shell was opened.

Scholton claimed that he wanted the back opened for his own personal safety and because he felt there might be contraband. Lee testified that he smelled "what appeared to be marijuana" coming from the back of the truck, although he could not see it. Lee testified that he noticed this odor of marihuana at the time the passengers were getting out of the pickup, before the camper shell had been opened. Subsequently the camper was opened and six bales of marihuana wrapped in plastic covering with lettering that said "Matamoras Fertilizing Company" were found. Scholton said he first smelled marihuana at the time the camper top was opened.

Appellant contests the initial stop by Scholton and Lee. The testimony that the pickup had pulled off the road and stopped and that the officers following the car just pulled in behind and approached the car with guns drawn does not alter the nature of the investigation as a "stop." Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1979). When the officers ordered appellant and the others out of the truck and, as Scholton testified, they were not free to go, they had been "seized". Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers' actions in observing, following, and detaining appellant must meet the standard necessary to justify the intrusion of an investigative stop. That standard requires that the law enforcement officer have specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen. Terry v. Ohio, supra; Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). Mere suspicions do not meet this test, Hull v. State, 613 S.W.2d 735 (Tex.Cr.App.1981), but neither is absolute certainty required. Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976, opinion on rehearing 1977).

The specific and articulable facts from which Scholton drew his inference that illegal activity might be occurring and investigation was necessary, including the lateness of the hour of the plane's arrival, the activity consistent with unloading cargo in the dark by several persons, the caravan and flares indicating planned activity by several persons, rather than a random or emergency landing, and the knowledge that clandestine rendezvous with aircraft in remote locations in the dead of night are standard practice in the drug importation trade, gave rise to a rational inference that reasonably warranted the intrusion of the investigative stop of appellant.

Appellant next contends that the trial court erroneously admitted into evidence the marihuana which was the product of an illegal arrest and search. He contends that the search of the pickup was unlawful because no probable cause existed to search and no exigent circumstances were present to permit the warrantless search and seizure.

Having determined that the initial stop was proper, we find as a consequence, given that deputy Lee detected the odor of marihuana coming from the pickup, that the search was also proper. Razo v. State, 577 S.W.2d 709 (Tex.Cr.App.1979); Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); United States v. Ross, supra.

Appellant finally contends that the evidence was insufficient to sustain the conviction because the State did not prove that appellant knowingly possessed the marihuana. To support a conviction for possession of marihuana 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. Christopher v. State, 639 S.W.2d 932 (Tex.Cr.App.1982); Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979).

The oft-stated rule in possession cases is the following:

It has been consistently held in this State that possession means more than just being where the action is; 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 .... Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it.

Both prongs of the test must be met. Examples of the kind of additional facts and circumstances which can indicate knowledge and control when an accused is in a vehicle usually involve a combination of facts, e.g., Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981), (marihuana in open or plain view, marihuana conveniently accessible to the driver, and the driver shown to be the owner of the car); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977), (a strong odor of marihuana in the car, either recently smoked or raw, contraband found on the accused, or the accused under the influence of marihuana, and conflicting stories as to who controlled the car). See also Johnson v. State, 625 S.W.2d...