Martinez v. State

• Decision Date: 10 March 1976
• Docket Number: No. 50239 and 50240.,50239 and 50240.
• Citation: 539 S.W.2d 885
• Parties: Diana G. MARTINEZ, Appellant, v. The STATE of Texas, Appellee. Hector C. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

539 S.W.2d 885

Diana G. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

Hector C. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 50239 and 50240.

Court of Criminal Appeals of Texas.

February 11, 1976.

Rehearing Denied March 10, 1976.

Warren Weir, San Antonio, for appellants.

Ted Butler, Dist. Atty. and Michael Schill, Donald A. Roush, Jr., and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a joint trial before a jury on separate indictments, appellants Diana G. Martinez and Hector C. Martinez were convicted of possession of a usable quantity of more than four ounces of marihuana. Punishment of appellant Diana G. Martinez was assessed by the court at five years, probated. The court assessed the punishment of appellant Hector C. Martinez at seven years' confinement.

Appellant Diana G. Martinez raises the contention that the evidence is insufficient to establish that she knowingly possessed the marihuana.

The record reflects at about 9:15 a. m. on September 15, 1973, Officer George Wilson and three other officers executed a search warrant at the home of appellants Hector and Diana G. Martinez, husband and wife, at 3011 Hatton Street in San Antonio. Upon being permitted entrance by a small child, the officers found appellants in bed together, apparently asleep, in the bedroom. In plain view on a table next to the side of the bed occupied by Diana Martinez, they found a glass jar containing a small amount of marihuana. In the kitchen next to the bedroom, the officers found a bag containing nine "bricks" of marihuana, the total weight of which was approximately nine pounds. A metal box containing marihuana, hashish, cigarette papers, a cigarette roller and a knife was on the kitchen table. A utility bill dated September 5, 1973 for gas and light furnished the premises at 3011 Hatton Street made out to Hector Martinez was found in the house. There is no evidence that anyone other than the appellants Hector and Diana G. Martinez lived in the house. The only others in the house when the search was made were two young children under 6 years of age.

Possession of narcotics need not be exclusive, and evidence that the accused jointly possessed the narcotic with another is sufficient. Williams v. State, Tex.Cr. App., 524 S.W.2d 705; Curtis v. State, Tex. Cr.App., 519 S.W.2d 883; Villegas v. State, Tex.Cr.App., 509 S.W.2d 314; Simpson v. State, Tex.Cr.App., 486 S.W.2d 807. The evidence must affirmatively link the accused to the contraband in such a manner that the accused knew of its existence and whereabouts. Williams v. State, supra; Hineline v. State, Tex.Cr.App., 502 S.W.2d 703; Adair v. State, Tex.Cr.App., 482 S.W.2d 247.

The jury was charged on the law of circumstantial evidence. When construed in the light most favorable to the verdict, we conclude that the evidence is sufficient to link appellant Diana G. Martinez to the marihuana found in the house occupied by her and her husband as their residence. Villegas v. State, supra; Williams v. State, supra.

Appellant Hector Martinez does not challenge the sufficiency of the evidence to support his conviction.

Both appellants contend that "it was error to admit evidence that a third party possessed marihuana seeds when defendant is not shown to be the party of said offense."

Specifically, appellants complain of the introduction of evidence from Officer Wilson that while the search was being conducted, two other individuals drove to the premises, stopped their car in front of the house and came to the door. Their car was searched, and a few marihuana seeds were found on its floor. These individuals were then placed under arrest. The objection that this evidence was immaterial and had no connection with what was found in the house was overruled.

The admission of this testimony was proper as a part of the circumstances surrounding the search and the arrest of appellants. See Cherry v. State, Tex.Cr.App., 479 S.W.2d 924; Wright v. State, 168 Tex. Cr.R. 645, 330 S.W.2d 620; Campbell v. State, Tex.Cr.Ap...