Patterson v. State, 3-85-314-CR

• Decision Date: 14 January 1987
• Docket Number: No. 3-85-314-CR,3-85-314-CR
• Citation: 723 S.W.2d 308
• Parties: Jerry Glenn PATTERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 308

723 S.W.2d 308

Jerry Glenn PATTERSON, Appellant, v. The STATE of Texas, Appellee.

No. 3-85-314-CR.

Court of Appeals of Texas Austin.

Jan. 14, 1987.

Rehearing Denied Feb. 11, 1987.

Paul Francis, Temple, for appellant.

Arthur C. Eads, Dist. Atty., James T. Russell, Administrative Asst., Belton, for appellee.

Before POWERS, GAMMAGE and ABOUSSIE, JJ.

POWERS, Justice.

Jerry Glenn Patterson was convicted of illegally possessing less than 28 grams of methamphetamine. Tex.Rev.Civ.Stat.Ann. art. 4476-15, §§ 4.02(b)(6), 4.04(b) (Supp.1986). Punishment, enhanced by two previous felony convictions, was assessed at 25 years imprisonment. Trial was before a jury on Patterson's plea of not guilty. Patterson appeals on eleven points of error in which he challenges: (1) the sufficiency of the evidence to support the judgment of conviction; (2) certain alleged procedural errors by the trial court; and (3) the sufficiency of the evidence to support the sentence imposed. We affirm the judgment of the trial court, in part and reverse that part of the judgment which assesses punishment, remanding the cause to the trial court for reassessment of punishment.

THE CONTROVERSY

On the basis of information received from a confidential informant, police officers obtained a search warrant authorizing their search of David Law's residence in Bell County. When officers arrived at the residence, they saw at least two persons enter the front door. Moments later one officer went to the front door, knocked, identified himself, and after waiting no more than ten seconds kicked the door down. A second officer went to the back door and entered in a similar fashion. When the first officer entered the front door, he found seven persons sitting or standing around the living room. Two others were found elsewhere in the house.

Appellant was among the seven individuals in the living room. When the officer entered the front door, he found appellant seated at the end of a couch next to an end table. On that table lay appellant's wallet, containing $905.00 in cash, a pistol "boot" holding ammunition for a .45 caliber weapon, and a brown suede bag which contained the following articles: $20.00 in cash, a syringe, a small set of scales, 1.10 grams of methamphetamine, and a small amount of cocaine. As the officer approached appellant, he raised his hands and stated that he The officers arrested appellant for possession of less than 28 grams of methamphetamine. David Law, the owner of the residence, and two females present at the time of the search were arrested as well.

had a gun but was not going to touch it. The officer then seized the gun (a loaded .45 caliber revolver) which appellant had theretofore concealed between his leg and the end of the couch. Appellant did not appear to be under the influence of drugs and made no furtive gesture or attempt to flee.

HOLDING AND DISCUSSION

Sufficiency of the Evidence to Support the Conviction

The illegal "possession" of a controlled substance is not a fact. It is rather a legal conclusion inferred from facts which are themselves inferred from or directly proved by the evidence adduced in the case. To sustain the conclusion of illegal possession of a controlled substance, the evidence must show beyond a reasonable doubt that the accused (1) exercised care, custody, and control over the substance (2) knowing that it was contraband. Oaks v. State, 642 S.W.2d 174 (Tex.Cr.App.1982). Possession need not be exclusive; an accused may jointly possess contraband with another. Travis v. State, 638 S.W.2d 502 (Tex.Cr.App.1982). Where the accused does not have care, control, and management of the place where contraband is found, the legal conclusion of possession may not be inferred without additional independent facts which affirmatively link the accused to the contraband. Flores v. State, 650 S.W.2d 429 (Tex.Cr.App.1983). Falling within this category of additional independent facts are such considerations as whether the contraband was in plain view, the proximity of the accused to the contraband, and whether the accused owned the place where the contraband was found. Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981). Actions taken by the accused may also be considered--whether he was under the influence of a controlled substance and whether he attempted to flee or made any furtive gestures. Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974). No set combination of facts dictates an inference of possession. Each case depends on the evidence adduced therein.

The evidence in the present case shows that appellant sat close to the brown suede bag containing the contraband. There were six others in the room; however, the contraband lay within the immediate reach of only one--the appellant. Were proximity the only fact affirmatively linking appellant to the contraband, our task would be a simple one for it has been consistently held by the Court of Criminal Appeals that mere proximity of the accused to the contraband is insufficient to establish the requisite affirmative link. Bright v. State, 556 S.W.2d 317 (Tex.Cr.App.1977); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976). ¹

The present case is made more difficult, however, by the presence of additional independent facts that particularly connected appellant with the contraband. Not only was appellant in close proximity to the contraband, but certain of his personal belongings--a wallet and a gun boot--were on the same table with the contraband. No other individual's belongings were found on or near the table. Appellant's wallet contained over $900 in cash and the officers found .45 caliber ammunition in the pistol boot. Finally, officers seized a loaded .45 caliber revolver which was concealed between appellant's leg and the end of the couch. By appellant's own admission, the weapon belonged to him.

In Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972), the evidence was held sufficient to support a conviction for possession of marihuana where, on entering an apartment, officers observed the accused and three others playing cards. A search of the premises revealed two baggies of marihuana and a letter addressed to the accused, all contained in a cardboard box located under a table about four feet behind where the accused was seated. The evidence was held sufficient to establish the necessary link.

In Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972), the accused was not present when officers began to search the residence, but arrived some 15 or 20 minutes later. Officers seized a brown cardboard box containing contraband and a driver's license issued in the name of the accused. At trial the driver's license was not introduced into evidence. The Court of Criminal Appeals held the evidence was insufficient to sustain the conviction.

In Nickerson v. State, 645 S.W.2d 888 (Tex.App.1983) aff'd, 660 S.W.2d 825 (Tex.Cr.App.1983), officers seized 20 to 25 pounds of marihuana from the trunk of a car the accused was driving. The evidence was held sufficient to sustain a judgment of conviction where the accused was in exclusive control of the vehicle, made furtive gestures towards contraband that lay in plain view on the floorboard of the vehicle, and possessed a large sum of cash and a weapon concealed on his person.

There are several facts and circumstances not found in the present record which have been held sufficient in other cases to supply the necessary link between the accused and the contraband. The contraband was not in plain view; the appellant made no furtive gestures, nor did he attempt to flee; he did not appear to be under the influence of drugs. However, the absence of such facts is not evidence of appellant's innocence to be weighed against evidence tending to connect appellant to the contraband. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976). The issue is whether the evidence adduced will support a reasonable inference that appellant knowingly possessed the contraband. Id. at 131. The appellant's proximity to the contraband, the commingling of his personal belongings with the contraband on the table top, and his possession of a large sum of cash and a loaded, concealed weapon (of a caliber matching that of the ammunition mixed with the contraband), in our opinion provide sufficient evidence to permit the inference and affirmatively link appellant and the methamphetamine. We emphasize here that it is not for us to decide whether the evidence at trial established appellant's guilt beyond a reasonable doubt; rather, after viewing the evidence in the light most favorable to the prosecution, we have simply determined that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Lopez v. State, 630 S.W.2d 936 (Tex.Cr.App.1982). We accordingly overrule appellant's first two points of error.

Appellant's third point of error alleges that the evidence is insufficient to support a judgment of conviction because a reasonable doubt existed, as a matter of law, due to the State's failure to call every available witness. This argument is grounded on the rule set out in Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251 (1956)--where testimony on which the State relies for conviction is obviously weak, and the record affirmatively reflects that there was testimony available to the State which would have shed additional light on the facts--which the State did not introduce or satisfactorily account for its failure to do so--the Court will treat such failure as evidencing a reasonable doubt as to the sufficiency of the evidence to support the conviction. This rule of the Ramirez case has recently been overruled by the Court of Criminal Appeals in Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986). In that case, the court stated: "Either the evidence permits a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt or it does not. What is not in evidence is irrelevant to a...