Pollan v. State

• Decision Date: 11 March 1981
• Docket Number: No. 3,No. 60061,60061,3
• Citation: 612 S.W.2d 594
• Parties: David J. POLLAN, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 594

612 S.W.2d 594

David J. POLLAN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 60061.

Court of Criminal Appeals of Texas, Panel No. 3.

March 11, 1981.

Sam Adamo, Houston, for appellant.

Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of more than four ounces of marihuana. Appellant was found guilty in a trial before the court and punishment was assessed at 10 years, probated.

In his first ground of error, appellant challenges the sufficiency of the evidence to support his conviction. He contends that the State only proved that he was present at the scene of the offense.

Officer Milton Shoquist testified that he was assigned to the organized crime unit of the Austin Police Department. Shoquist related that he was working in an undercover capacity and had been negotiating the purchase of two hundred pounds of marihuana.

Terry Hobbs had agreed to sell Shoquist the marihuana with a "50 (pound) feeler" being the initial delivery. On October 19, 1976, Shoquist went to Hobbs' home. Appellant, Hobbs and two other individuals were at the house when Shoquist arrived with a fifth individual. When Shoquist entered the house, appellant and two other individuals went to a rear bedroom of the house. Upon emerging from the bedroom, appellant had a spiral notebook and the two other individuals were carrying cardboard boxes. The boxes were then placed in a front bedroom and everyone in the house, including appellant, entered the bedroom. Both of the boxes were then opened in the bedroom. Each box contained numerous bricks of a substance which appellant stipulated was marihuana. According to Shoquist, "there was a general discussion amongst everybody about whether to weigh it in the bedroom or bring the stuff out into the living room." Hobbs had "a small scale." Shoquist related that appellant, with the aid of the notebook, was apparently going to record the weight of each brick of marihuana and arrive at a total weight of the purchase.

Appellant made no statements in the presence of Shoquist. Everyone was arrested when Shoquist went outside and gave a secret signal to a number of officers who were nearby.

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, Tex.Cr.App., 582 S.W.2d 841. It is not necessary to prove that the accused had exclusive possession of the narcotics in question. Damron v. State, Tex.Cr.App., 570 S.W.2d 933. 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, Tex.Cr.App., 571 S.W.2d 188.

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, Tex.Cr.App., 588 S.W.2d 340. Among such additional facts which can establish the affirmative link are: the marihuana was in open or plain view, Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127; The place where the contraband was found was enclosed, Mendoza v. State, Tex.Cr.App., 583 S.W.2d 396; when the marihuana was found, there was sufficient light for a person to see that marihuana, Hernandez v. State, supra; the amount of marihuana found, Carvajal v. State, Tex.Cr.App., 529 S.W.2d 517; the narcotic was conveniently accessible to the accused, Hahn v. State, Tex.Cr.App., 502 S.W.2d 724; and the accused's action toward the contraband may show his intent to violate the statute, Alaniz v. State, Tex.Cr.App., 458 S.W.2d 813.

We conclude that the State proved much more than appellant's mere presence at the scene of the offense. When Shoqist arrived at the house, appellant immediately moved to the rear of the house to retrieve the contraband. This large quantity of contraband was then returned to another portion of the house and displayed to the prospective purchaser. All of these events occurred in appellant's presence. We find the evidence sufficient to support appellant's conviction.

In his third ground of error, appellant contends that he was denied the effective assistance of counsel. Appellant maintains such denial arose by his retained counsel representing both him and another individual to the transaction.

There was no objection to the dual representation at trial. The record reflects that Michael Wasaff and appellant were tried in the same proceeding. Wasaff carried one of the cardboard boxes located inside Hobbs' home. Appellant and Wasaff were represented in their joint trial by the Honorable Bruce Sternberg.

In Cuyler v. Sullivan, 444 U.S. 823, 100 S.Ct. 1708, 62 L.Ed.2d 30 (1980), the Supreme Court held that when no objection to an alleged conflict of interest is raised at trial the defendant must show an actual conflict which adversely affected his lawyer's performance. The mere showing of a possible conflict of interest is not sufficient to prevail on a claim of ineffective assistance of counsel. This Court has granted relief in those cases in which a defendant has shown a conflict of interest which has actually affected the adequacy of his attorney's performance. See Ex parte Parham, 611 S.W.2d 103 (1981); Ex parte Alaniz, Tex.Cr.App., 583 S.W.2d 380.

In an effort to show an actual conflict of interest which adversely affected Sternberg's performance, appellant has attached an affidavit to his brief. The affidavit was not introduced at trial and is not a part of the record on appeal under the provisions of Art. 40.09, V.A.C.C.P. Such an affidavit is not entitled to consideration by this Court. Keith v. State, 89 Tex.Cr.R. 264, 232 S.W. 321. We find that appellant's contention of ineffective assistance of counsel is not supported by the record and is accordingly without merit.

In his second ground of error, appellant contends that the indictment in this cause is fundamentally defective. He maintains that the indictment should have alleged that appellant's possession of the marihuana was "unlawful." This contention is presented for the first time on appeal.

The indictment in this cause alleges in pertinent part that on October 19, 1976, appellant:

"... did then and there knowingly and intentionally possess a usable quantity of marihuana of more than four ounces ..."

Art. 4476-15, Sec. 4.05(a), V.A.C.S., provides that except as authorized by the Controlled Substances Act, a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana. Sec. 5.10(a), supra, provides as follows:

"It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit."

The State was not required to allege that appellant's possession was unlawful as being unauthorized by the Act. See Bailey v. State, Tex.Cr.App., 559...