Martin v. State, 896-84

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation753 S.W.2d 384
Docket NumberNo. 896-84,896-84
PartiesJune Martha MARTIN and Lloyd Dale Martin, Appellants, v. The STATE of Texas, Appellee.
Decision Date18 May 1988

Ronald H. Tonkin, Houston, for appellants.

James H. Keeshan, Former Dist. Atty., Peter C. Speers, III, Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for State.

Before the Court en banc.

OPINION ON STATE'S AND APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant Lloyd Dale Martin was arrested along with his wife, appellant June Martha Martin, and their son-in-law Ronald Yarbrough. All three were charged with the offense of aggravated possession of methamphetamine. Ronald Yarbrough entered a plea of guilty to the offense and was sentenced to twenty years' confinement and a $10,000.00 fine. His case is not before us. Appellants Lloyd Dale Martin and June Martha Martin entered pleas of not guilty. After a joint trial before a jury, both were convicted. The trial court assessed punishment for both at fifteen years' and six months' confinement and a fine of $5,000.00.

On original submission to the Beaumont Court of Appeals, both Lloyd Dale Martin's and June Martha Martin's convictions were reversed because the record did not contain proper jury waivers with respect to the punishment phase of their trial. The Court of Appeals, in an unpublished opinion, found that the trial court erred in assessing punishment for both appellants and thus reversed their cases and remanded them for a new trial. Martin v. State, No. 09-83-118 CR, (Tex.App.-Beaumont, delivered May 23, 1984). Appellant Lloyd Dale Martin filed a motion for rehearing asking that the Court of Appeals consider his challenge to the sufficiency of the evidence. The Court of Appeals did so and, in another unpublished opinion, found the evidence to be such that the jury could have concluded that Lloyd Dale Martin was guilty of either sole or joint possession of a controlled substance. Martin v. State, No. 09-83-118 CR, (Tex.App.-Beaumont, delivered July 11, 1984) (Opinion on Rehearing).

We granted appellant Lloyd Martin's petition for discretionary review to review the Court of Appeals' decision as to the sufficiency of the evidence. We also granted the State's petition for discretionary review in both Lloyd Martin's case and June Martin's case to review the Court of Appeals' decision regarding the jury waiver issue.

I. Lloyd Dale Martin

We borrow from the summary of the facts contained in the Court of Appeals opinion on rehearing:

"The evidence before the jury was that the police had been investigating Ronald Yarbrough, Martha June Martin and Lloyd Dale Martin for several months. On October 25, 1981 the police received information from a confidential informant that Ronald Yarbrough was in possession of methamphetamine at his house. The police secured a search warrant....

"Pursuant to the search warrant, the police arrived at the Yarbrough residence and gained entry. Lloyd and Martha Martin had arrived at the Yarbrough residence in their car approximately fifteen minutes before the raid team arrived. Appellant [Lloyd Dale Martin] left on a motorcycle, returning after the police had gained entry into Yarbrough's house.

* * *

"The evidence further showed that the police searched Mrs. Martin's purse and found 51.29 grams of methamphetamines and that the police searched the Martin's car and found .16 grams of methamphetamines and $7,100.00 in cash in a black bag on the front seat of the Martin's (sic) car.

"There was also evidence that the car, though registered in the name of a third party, had been purchased by the Martin's (sic) several months before their arrest. When the Martin's (sic) purchased the car, they paid the entire $2,000.00 in cash in twenty dollar bills. The registration of the vehicle was never changed. However, the narcotics officer in charge of the investigation had seen the Martins driving the vehicle several days before the search." [material in brackets added]

Other evidence showed that the Martins' car was not searched until some one and a half hours after the authorities had arrived at the premises. Throughout this time, the car had been unlocked and the driver's window rolled down. Further evidence showed that when appellant arrived at the scene on his motorcycle, he was met by a deputy sheriff who escorted him into the residence.

The jury was instructed that they could convict Lloyd Martin either as a sole actor or as a party with his wife, June Martin.

In reviewing sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the judgment. Gonzales v. State, 689 S.W.2d 900 (Tex.Cr.App.1985). The critical inquiry is whether, after viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If, after viewing the evidence in this light, there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Anderson v. State, 701 S.W.2d 868 (Tex.Cr.App.1985); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (concurring opinion on rehearing).

Where an accused is charged with 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 was contraband. Nunn v. State, 640 S.W.2d 304 (Tex.Cr.App.1982).

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. McGoldrick v. State, 682 S.W.2d 573 (Tex.Cr.App.1985); Rodriguez v. State, 635 S.W.2d 552 (Tex.Cr.App.1982). However, when the theory of prosecution is that the accused or another acted together in possessing a narcotic drug, the evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it. McGoldrick v. State, supra; Rodriguez v. State, supra. Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession, or constitute one a party to an offense. McGoldrick v. State, supra.

In order to prove that an accused acted as a party to the offense, the State must prove that the accused acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. V.T.C.A., Penal Code, Section 7.02(a)(2).

We find the instant case comparable to the fact situation in Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). In Damron, the evidence revealed that while Damron was away from his home, a search warrant was executed at the home. The only persons present at that time were appellant's wife and child. In a bedroom closet of the house authorities found one pound of marihuana in various containers and some large stems of marihuana plants. Damron was arrested away from his home and by the time he was taken to his residence the search had been completed. There was no showing that Damron had any contraband in his possession at the time of his arrest or made any incriminating statements. Evidence did show that two days prior to the search, Damron's brother-in-law who had been previously convicted of possession of marihuana had been present in the house. In finding the evidence insufficient to support Damron's conviction for possession of marihuana, this Court noted the following:

"In the instant case the appellant was (1) not at the place searched at the time of the search, and (2) there were other persons present at the time of the search and shown to be living there so appellant was not in exclusive possession, (3) the marihuana was found in a closet in a bedroom without any showing it was appellant's bedroom or the only bedroom in the house and no showing of appellant's personal belongings in the closet or bedroom or even the observation of any men's clothing, etc., and (4) appellant was not found in possession of any contraband at the time of arrest nor (5) was he under the influence of any narcotic and (6) he did not make any incriminating statements at the time of the arrest." Damron v. State, supra at p. 936.

Turning to cases involving contraband found in automobiles, we find the case of Heltcel v. State, 583 S.W.2d 791 (Tex.Cr.App.1979) to be instructive. In Heltcel, a police officer stopped a car for speeding. Heltcel was driving the car. A woman was riding in the front passenger seat and a male passenger was in the back seat "feigning sleep." After determining that Heltcel's driver's license was expired, the officer asked for permission to search the car for weapons. Heltcel consented. The officer found a pistol under the front seat and two brown paper bags containing bricks of marihuana in the back seat where McCain, later identified as the owner of the car, had been lying. After reviewing the evidence, Judge Douglas, writing for the majority of this Court, found the evidence to be insufficient to show that Heltcel possessed the marihuana. Specifically he found that there was no evidence that he knew the contraband was in the car, there was no evidence of a noticeable odor within the car and finally, no other contraband was found either in the car or on Heltcel's person.

Even more recently in the case of Humason v. State, 728 S.W.2d 363 (Tex.Cr.App.1987), we found the evidence insufficient to sustain a conviction for possession of cocaine where Humason, the sole occupant of a pickup truck, was arrested after an officer determined that he was driving with a suspended driver's license and a search of an unzipped cloth gym bag lying on the seat next to Humason revealed a clear vial...

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