Oaks v. State
| Decision Date | 03 March 1982 |
| Docket Number | No. 05-81-00078-CR,05-81-00078-CR |
| Citation | 629 S.W.2d 272 |
| Parties | Freeman OAKS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
This is an appeal from a conviction for possession of heroin for which the court set a punishment of confinement for three years. Appellant contends the evidence is insufficient to support the verdict. We do not agree and, therefore, we affirm the judgment of the trial court.
The evidence, viewed in the light most favorable to the State, shows that on December 4, 1978, Officer Jerry W. Foster of the Drug Abuse Section of the Vice Control Division of the Dallas Police Department was surveilling a residence in Dallas County. During the morning he saw ten known heroin addicts go to the door of the residence. In each case, appellant came to the front door and talked for a few moments. Each addict gave appellant money in exchange for an unidentified item. Officer Foster could not tell what the item was. In the afternoon, four such exchanges were made.
That afternoon, Officer Foster and another Dallas Police Officer, Officer Burkett, executed a warrant at the residence. There were fifteen people at the residence. Officer Burkett discovered thirteen red capsules in a wastepaper basket approximately six to eight inches from where appellant was standing. Appellant was the only person near the basket. The capsules contained heroin and had a street value of $12.00 each. Officer Burkett testified that he could see the capsules when he was standing over the basket. Appellant had an unspecified amount of money on his person.
In order to establish the 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 possessed was contraband. Dubry v. State, 582 S.W.2d 841 (Tex.Cr.App.1979). It is not necessary to prove that the accused had exclusive possession of the narcotics in question. Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188 (Tex.Cr.App.1978).
The affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979). Among such additional facts which can establish the affirmative link are: the contraband was in open or plain view, Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); the place where the contraband was found was enclosed, Mendoza v. State, 583 S.W.2d 396 (Tex.Cr.App.1979); when the contraband was found, there was sufficient light for a person to see that contraband, Hernandez v. State, supra ; the amount of contraband found, Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); the narcotic was conveniently accessible to the accused, Hahn v. State, 502 S.W.2d 724 (Tex.Cr.App.1973); and the accused's action toward the contraband may show his intent to violate the statute, Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970).
An examination of the record in the present case shows that there is sufficient evidence to affirmatively link appellant to the contraband. Appellant was within six inches of the contraband at the time the officers executed the warrant. The contraband was in plain view from appellant's location and no other person was close to the contraband. Appellant had an unspecified amount of money on his person and had been observed selling something to fourteen known heroin addicts earlier that day.
Our prior opinion is withdrawn. The State's motion for rehearing is granted and the judgment of the trial court is affirmed.
Affirmed.
In my opinion the evidence is insufficient. I would reverse and direct a verdict of acquittal.
A more detailed statement of the State's evidence than as contained in the majority opinion is thought necessary.
Officer Foster testified that on December 4, 1978, he, along with Officer Burkett executed a search warrant at an apartment. It was not established for what the warrant authorized the police to search. The apartment was described by Foster as a "gambling house." Upon approaching the closed apartment door, the police opened the door and observed approximately fifteen people in one large room described as a combination living room and kitchen area. Officer Foster testified that the front bedroom had a bed in it and that the other bedroom had a dice table; a card table set up. Appellant was at the kitchen stove when the police entered. Seated at the nearby kitchen table were four or five people playing dominoes.
Officer Foster testified that a wastepaper basket was positioned about two feet from the appellant. Officer Burkett testified that appellant was at a maximum of six to eight inches from the wastepaper basket. Those persons at the kitchen table were about six feet from the basket. Burkett testified he looked into the trash basket and that, although "there was a lot of trash in there," he observed "a plastic baggie, clear baggie, sandwich type bag that contained thirteen (13) red capsules that appeared to be Heroin." When asked to be more specific as to the location of the contraband, Burkett said only that "they were lodged between the side of the trash can and top of the trash."
The testimony of the police officers further established that appellant did not rent the premises; that no contraband was found on his person; that he was not under the influence of heroin; that he had no needle marks; that he made no furtive movements of any kind; that no fingerprints were taken from the plastic baggie; and that additional undescribed drugs were found in another room of the apartment. Officer Foster testified that a man named Lowry was the lessee of the premises. Officer Foster further testified that he had previously described the apartment as
The testimony of the police officers also established that when they entered the apartment no one ran from the location where the wastepaper basket was placed; that appellant was not seen to bring his hand up from the wastepaper basket; that a search of the persons on the premises did not produce any drugs or weapons on any of those persons. Officer Foster, who searched appellant, could not recall how much money appellant had; it was just "some" money. Officer Foster also testified that some of the persons in the apartment were shooting dice and there was a lot of money around.
Foster also testified that prior to the execution of the warrant he had, on that same day, conducted a surveillance of the apartment. During that morning he saw some eight to ten persons he described as known heroin addicts knock on the door, following which appellant would come outside and talk for a few minutes. Foster testified he observed each person give appellant money and appellant would then give the person "something." Foster could not see or describe this "something." In the afternoon, and still prior to the execution of the warrant, three or four such exchanges were made; however, Officer Foster did not describe those three or four persons as "known heroin addicts." Officer Foster did not testify as to how he could identify any person who came to the door as a "known heroin addict."
The majority recites certain affirmative links it relies on as showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Those links must be considered within the context of the facts of this case. The links recited are:
(e) the accused's actions toward the contraband may show his intent to violate the statute.
I am at a loss to understand how the majority finds this last "link" to be applicable to appellant. The State's evidence shows appellant standing at a kitchen stove either six to eight inches or two feet from a wastepaper basket in which the contraband was found. Appellant made no furtive movements, he was not seen to bring his hand up from the wastepaper basket and he did not run when the officers opened the door. There is no proof whatever of appellant's action toward the contraband. In this instance, the majority creates a "link" out of thin air.
With respect to the open and plain view link, I do not agree that the heroin in the present case was in open and plain view. The capsules were in a trash receptacle, not lying on the kitchen table. The fact that the officer, in executing the warrant, could peer into the trash container and identify disposed of substances lodged between the side of the trash can and top of the trash does not establish open and plain view.
The links relied on by the majority cannot be considered in a vacuum. They have to be considered in light of the State's case. It was not shown for what the warrant authorized a search. The premises in question were not the "residence" of the appellant as the majority would have us believe, rather, the premises were a public place. In Officer Foster's...
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Oaks v. State
...aside and the conviction was affirmed in a 7-5 decision with dissenting opinions by Justice Whitham and Justice Fish. Oaks v. State, 629 S.W.2d 272 (Tex.App.--Dallas 1982). Appellant now seeks review of such decision by virtue of his petition for discretionary The issue presented is a close......