Norman v. State

• Decision Date: 19 September 1979
• Docket Number: No. 1,No. 56831,56831,1
• Citation: 588 S.W.2d 340
• Parties: Shirley Thrash NORMAN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 340

588 S.W.2d 340

Shirley Thrash NORMAN, Appellant, v. The STATE of Texas, Appellee.

No. 56831.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 19, 1979.

Rehearing En Banc Denied Oct. 31, 1979.

Randy Taylor, Dallas, for appellant.

Tom O'Connell, Dist. Atty., Verla Sue Holland, George E. Gasper and William L. Schultz, Asst. Dist. Attys., McKinney, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of delivery of heroin. Punishment was assessed at 50 years' confinement in the Department of Corrections. Appellant initially challenges the sufficiency of the evidence to prove she intentionally and knowingly delivered the heroin.

The record reveals, in a light most favorable to the verdict, that Troy Braswell, a narcotics agent employed by the Texas Department of Public Safety, received a telephone call on January 28, 1976, from Dewayne Hamilton, a confidential informant, that a meeting for a sale of heroin had been arranged for the afternoon of January 29, 1976, at Dallas North Airport in Collin County. Agent Braswell, together with other agents and law enforcement persons, proceeded to that location on that day. Upon Braswell's arrival, he met with Domingo and Ruby Reyes, who had arrived in another vehicle. Shortly thereafter, the agent and the Reyeses moved their vehicles to another location at the airport. After a brief conversation, during which Agent Braswell showed Reyes $10,000.00 for the purchase of the heroin, Reyes motioned to the occupants of another vehicle that the agent had observed during the conversation. This vehicle was occupied by appellant and her husband, Albert Norman. After Reyes motioned, Al Norman left their car, walked around the car to appellant, who was already out of the car, and handed to appellant a sack which she then carried to Agent Braswell and Reyes's location. She delivered the sack to the agent. The sack contained four prophylactics containing heroin. After the arrest of appellant and the other persons, a search of the Norman vehicle revealed a cellophane package found over the sun visor of the driver's side where Mr. Norman was observed. This package contained heroin.

Possession of the heroin need not be exclusive and evidence which shows that the appellant jointly possessed the contraband with another is sufficient. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.), and cases cited therein. However, a finding of joint possession cannot be justified solely by proof of mere presence of an accused at a place where contraband is being used or possessed. Ayers v. State 570 S.W.2d 926 (Tex.Cr.App.); Brooks v. State 529 S.W.2d 535 (Tex.Cr.App.); Harrison v. State, 555 S.W.2d 736. Whether the theory of prosecution is sole or joint possession, 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. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.); Curtis v. State, supra; Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.). This affirmative link is established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.); Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.).

In this case, more than appellant's mere presence is shown. Appellant exercised control over the sack, not stapled or shut, containing the heroin which she carried from her car to the Reyes car. Agent Braswell testified Reyes said that his runners, indicating appellant and Norman, would bring the heroin to his car upon his (Reyes's) seeing the money. This conversation occurred at both locations.

The heroin found over the driver's visor of the Norman car was that which appellant's husband, a heavy heroin addict shooting approximately $600.00 a day and who "fixed" three or four times a day and who had purchased heroin from Reyes on prior occasions, had obtained from Reyes for his part in the deal. Norman had received it at Reyes's house earlier that morning when he received the sack and a "fix" for payment. Appellant allegedly waited in the car, but the sack of heroin was placed under appellant's car seat when they left the Reyes house.

Following the Reyes car, with the heroin in the Norman car, they proceeded from Oak Cliff to the Mobil Station at Highway 544 and Preston Road. At that location, they met Hamilton. With the appellant present, Reyes removed the sack from underneath the seat of appellant and went with Hamilton into the restroom at the Mobil Station where Reyes gave Hamilton some of the heroin from the sack for his (Hamilton's) part in the transaction. Reyes again placed the heroin under the seat of the Norman car with the appellant present and all of the parties proceeded to Dallas North Airport. Norman testified, however, that because he and his wife were not speaking, appellant did not know the contents of the sack.

The jury, being the judge of the credibility of the witnesses, could accept or reject some or all of their testimony. Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.). The language in Cockrell v. State, 135 Tex.Cr.App. 218, 117 S.W.2d 1105, is applicable. It is as follows:

. . . we are not allowed to substitute our judgment for that of the jury, and should not disturb the verdict unless no facts are found to support it. . . .

Based upon these facts and circumstances, the jury could reasonably infer that the appellant knew of the heroin's existence, thereby indicating her knowledge and control. We find the evidence sufficient to sustain the verdict. Appellant's first ground of error is overruled.

Appellant's second ground of error alleges that the trial court erred in failing to grant immunity from prosecution to the State's informant, Dewayne Hamilton, when he refused to answer questions on Fifth Amendment grounds because the evidence showed that he was an agent of the State and his testimony was necessary to appellant's defense of "vicarious entrapment," thereby denying appellant her right to compulsory process for obtaining witnesses for her defense in violation of the Sixth and Fourteenth Amendments.

An examination of Dewayne Hamilton's claim against self-incrimination in this case reveals that his claim was spurious and that he was an agent of the State, but the trial court allowed such claim to prevail. The questions presented are whether the trial judge's allowance of a spurious Fifth Amendment claim asserted by the State's informer denied appellant her Sixth Amendment right to call a witness to support her vicarious entrapment defense and if so, was this denial harmless beyond a reasonable doubt.

This is not the first time the trial judge and the State's informant Dewayne Hamilton have come face to face in the same trial. In Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App.), the same trial judge also allowed Dewayne (Duane) Hamilton to claim his Fifth Amendment privilege based upon an undercover agent's sworn denial that he had any relationship with Hamilton. When this Court instructed the trial court in that case to conduct another evidentiary hearing allowing the petitioner in that habeas corpus proceeding to call Hamilton as a witness, the same trial judge made a fact finding that: "This court finds that Hamilton Could have been the informant in the transaction and Could have played a material part in bringing the parties together for the alleged transaction . . ." and that based upon this evidence, Hamilton's Fifth Amendment claim was "without substance," and had the court heard the evidence subsequently given by both the undercover agent and Hamilton at the time of the original trial, the court would not have allowed the claim. (Emphasis added)

The trial court filed these Additional Findings of Fact and Conclusions of Law on April 5, 1976.

On June 23, 1976, two and a half months after he filed the above findings, the trial judge heard evidence in the instant case from State Undercover Agent Braswell that Hamilton Was the informant in the transaction involving the appellant, Did play The major part in bringing Reyes and Braswell together, and was acting in accordance with instructions from Agent Braswell. Despite this, and his prior findings concerning Hamilton two and a half months before, the trial court again allowed Hamilton to claim his Fifth Amendment privilege against self-incrimination when asked questions concerning himself and Reyes. The law is well settled that if Hamilton was actually working at the direction of and in conjunction with Agent Braswell, he was acting as a State agent and his claim of privilege under the Fifth Amendment was spurious. Ex parte Turner, supra.

The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified . . . The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." Hoffman v. U. S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)

Moreover, assuming that informer Hamilton's taking the Fifth Amendment was a case of first impression with the trial court, we find the procedure followed below erroneous.

At the trial, pursuant to appellant's motion to call Dewayne Hamilton as an adverse witness, a hearing was conducted outside the presence of the jury. All questions propounded to Hamilton concerning his relationship to Reyes and Agent Braswell, his role as an agent of the State, and the heroin delivery were answered: "I refuse to answer on the grounds...