McGoldrick v. State

• Decision Date: 09 January 1985
• Docket Number: No. 67341,67341
• Parties: John D. McGOLDRICK, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 573

682 S.W.2d 573

John D. McGOLDRICK, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 67341.

Court of Criminal Appeals of Texas En Banc.

Jan. 9, 1985.

Frank Robin, Jr., The Woodlands, for appellant.

James H. Keeshan, Dist. Atty. and Mary Ann Parish, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction as a party for the possession of more than four ounces of marihuana. Punishment was assessed by the jury at five years' imprisonment and a fine of $5,000.00.

On appeal a number of grounds of error are presented. Appellant, inter alia, contends the trial court erred in admitting, over objection, the hearsay statements of Gary Johnson to undercover officers, on the theory that they were declarations of a co-conspirator made in the furtherance of a conspiracy, when no conspiracy was ever proven; that the court erred in admitting, over objection, items seized as a result of an illegal search and "inventory" of his automobile; that the court erred in overruling objections to a number of improper jury arguments by the prosecutor, and that the evidence was insufficient to sustain the conviction. We agree the evidence is insufficient and reverse the conviction.

Appellant was jointly indicted in the second count of the indictment with Leland Marrow and Gary Johnson as "acting together" in possessing more than four ounces of marihuana.

On May 18, 1979, deputies Don Pollock and Mark Bousquet of the Montgomery County Sheriff's office were working as undercover narcotic officers. Bousquet set up a meeting between Gary Johnson and Pollock, who was posing as a prospective buyer.

Bousquet and Pollock went separately at 12 noon to the meeting place--Kroger store's parking lot in Conroe. Johnson arrived later in a brown Chevrolet Malibu driven by a young woman. Pollock and Johnson discussed the delivery of marihuana. Gary Johnson talked about selling 100 pounds of marihuana at $300.00 per pound. Pollock showed Johnson $30,000.00 in cash in a bag, which he had temporarily borrowed from the Federal Drug Enforcement Administration. Johnson finally said his "people" only had 63 pounds at the time but were preparing for 42 tons of marihuana. Pollock tape recorded the conversation. ¹

Subsequently that afternoon Pollock had several telephone conversations with Gary Johnson as to the amount of marihuana to be delivered. They agreed on 78 pounds. The parties decided to meet again at the Kroger's parking lot at 6 p.m. with Gary Johnson to take Bousquet's vehicle to obtain the marihuana.

Surveillance was set up including a helicopter, a van from which pictures could be taken, and a number of police vehicles. Gary Johnson arrived at 6:15 p.m. in the brown Malibu. Pollock gave Johnson the paper sack in which he previously had the money. This time, however, it contained cut up pieces of a phone book covered by $10.00 bills. Gary Johnson did not look in the sack, but placed it in the trunk of the Malibu. Gary Johnson then took Bousquet's green Dodge Dart automobile to obtain the marihuana. He was followed by several police vehicles and by the helicopter.

Deputy sheriff Donald Johnson ² was a passenger in the helicopter. He observed the green Dodge go North on Hwy. # 45, exit onto Fm. Rd. 830 and turn left onto a road and travel for four or five miles before stopping by a trailer house near a lake. Two individuals were outside the house. The driver and the other two went into the house for three or four minutes. One individual then went to a shed and brought back a small package, "some kind of package. I couldn't tell what it was ...." and put it in the trunk of the Dodge. Deputy Johnson from the helicopter then observed that individual (apparently Gary Johnson) get in the driver's seat of the Dodge and another individual also get in the Dodge. The third individual (later shown to be the appellant) got into a light beige car and followed the green Dodge as it left the trailer house. The cars were kept under surveillance by the helicopter and police motor vehicles as they proceeded into Conroe. It was determined the beige car was a Lincoln Continental with license plate number TQE 810. The vehicles did not proceed to the Kroger's parking lot, but went to North Hills Shopping Center and stopped. The passenger in the green Dodge got out and entered a white Ford already parked on the lot. The green Dodge and white Ford were then driven across the street to a Gibson's parking lot. The beige car turned south onto Frazier Street and left the area. Surveillance of that car was lost.

Deputy Johnson was able to observe from the helicopter that the Dodge and Ford parked along side each other in the Gibson's parking lot, and the individuals removed packages from the trunk of the white Ford and place the same in the trunk of the green Dodge. Both trunks were closed and both individuals got in the Ford and drove toward Kroger's.

Deputy Pollock, who had been kept informed of developments by police radio, saw Gary Johnson walk around the building at Kroger's where he was sitting in his car. Gary Johnson told him the Dodge was on another parking lot and they would have to go there to get the marihuana. Gary Johnson rode with Deputy Bousquet in Johnson's brown Malibu and Pollock drove his own vehicle to the Gibson's parking lot. Bousquet opened the trunk of the Dodge and examined the contents. He then gave a prearranged signal and Pollock from his vehicle ordered "the arrest." As police officers converged on Gary Johnson and Bousquet, Pollock drove off. Bousquet was arrested to prevent blowing his cover. The marihuana was seized. ³

Two or three minutes later the white Ford was stopped near the Gibson's parking lot and its driver was arrested. He was Leland Morrow.

Approximately 15 to 20 minutes later, the beige Lincoln Continental was stopped on Frazier Street and the driver, the appellant, was arrested. After appellant was outside the car, apparently at the rear, being handcuffed, Patrolman Hightower entered the Continental and found a blue pouch. He unzipped it and found an unloaded pistol. No ammunition was shown to have been found. The Continental was impounded and later searched or inventoried. Deputy Pollock found in the trunk a copy of the Nacogdoches Daily Sentinal, dated May 11, 1979, some duct tape, and some white garbage bags, and a wallet with the identification of Alvin W. Nelson of Madisonville. No marihuana was found in the car. ⁴ Evidence was offered to show the Continental was leased by Nac Tex Service in Nacogdoches.

A search of appellant's person revealed some business cards and receipts. A $72.00 receipt was signed "J.D. McGoldrick by Leland," a receipt on the back of which was written three telephone numbers of Gary Johnson, an Old Mill Inn card on back of which were some calculations and figures ⁵ were introduced into evidence.

The chain of custody was established and the chemist testified the substance submitted to him was marihuana weighing 71 pounds. Pollock related the marihuana when first found in the Dodge had with pages of the Nacogdoches Daily Sentinal of May 11, 1979, some white garbage bags and some duct tape on some of the packages. He felt these had been misplaced when sent to the chemist. The chemist testified the exhibits as offered were in the same condition as received by him.

Appellant testified he had known Morrow for 12 years and at one time Morrow had run a club for him in Nacogdoches, and that Morrow was a partner with him in a trailer company in Nacogdoches, Nac-Tex Service. That company leased a Chevrolet truck and Lincoln Continental, and that several people had access to the car from time to time.

On the day in question appellant, who lived in Bryan, had been in Groveton and Huntsville, decided to go to Conroe to see about collecting a year old debt of $100 owed him by Tommy Hansen, a son of a long-time friend. The father, Alfred Hansen, had told him his (Hansen's) son could be contacted through Gary Johnson, and instructed him how to get to Johnson's trailer house. He had also given appellant Johnson's telephone numbers.

Appellant drove to the trailer house and encountered Morrow, who said he was in Conroe to visit his children. Johnson, he said, arrived shortly thereafter. When he inquired about Tommy Hansen, Johnson told him Hansen might be at the Moon Palace and to follow him into Conroe and he would show the appellant where the place was.

Appellant related he followed the green Dodge to the North Hills Shopping Center where either Johnson or Morrow directed him how to reach the Moon Palace. He then left and drove to the Moon Palace. He was unable to find Hansen there. He departed for Bryan. Being unfamiliar with Conroe, he drove in the wrong direction. When he realized his mistake and changed directions, he was arrested.

Appellant denied any knowledge of or involvement with the drug transaction. ⁶

Alfred Hansen testified appellant told him about his son's debt and he told appellant his son was probably in Conroe and could be contacted through Gary Johnson. He gave appellant Johnson's telephone number and directions to the trailer house.

The court submitted only the second count of the indictment, and authorized conviction under the law of parties. ⁷ See V.T.C.A., Penal Code, § 7.01 and 7.02. The jury found the appellant guilty.

In reviewing the sufficiency of the evidence to sustain the conviction, we observe this Court has held that the standard for such review on appeal is the same for both direct and circumstantial evidence cases. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (opinion on rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983) (opinion on rehearing); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Further, the relevant standard is the one...