Ramos v. State

• Decision Date: 29 March 1972
• Docket Number: No. 44303,44303
• Citation: 478 S.W.2d 102
• Parties: Domingo RAMOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 102

478 S.W.2d 102

Domingo RAMOS, Appellant, v. The STATE of Texas, Appellee.

No. 44303.

Court of Criminal Appeals of Texas.

March 29, 1972.

Abel Toscano, Jr., Harlingen, for appellant.

F. T. Graham, Dist. Atty., Brownsville, Joel William Ellis, Asst. Dist. Atty., Harlingen, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION ON STATE'S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn and the following substituted in lieu thereof.

This appeal is from a conviction for the unlawful possession of a narcotic drug, to-wit: marihuana. Punishment was assessed by a jury at five years.

The record reflects that on the evening of March 22, 1970, Officer Omar Lucio of the Harlingen Police Department received information from a confidential informant that the informant had smoked marihuana with appellant at appellant's home. On the basis of this information, a search warrant was obtained and executed at the appellant's house at approximately 6:43 A.M. the following morning. Upon being shown the warrant and informed of the purpose of the officer's visit, appellant stated that if the officers 'did find anything there, somebody else had planted it there.' A search of the residence revealed no contraband. Marihuana was found, however, in a utility room which was located behind the house.

Appellant complains that the trial court erred by refusing to submit his requested charge to the effect that they should acquit appellant if they found that someone other than appellant had placed narcotics on the property without his knowledge or consent. A timely objection was made to the charge.

Where an accused is charged with the unlawful possession of a narcotic drug, two elements must be proven: (1) that he exercised care, control, and management over the contraband; and (2) that he knew that the object he possessed was contraband. This court stated in Fawcett v. State, 137 Tex.Cr.R. 14, 127 S.W.2d 905, that the state must prove the accused knew what he possessed because if--

'. . . he did not know what it was, it would be apparent that there was an entire absence of an intent on his part to violate the law. He would, in such a case, be an innocent victim of circumstances. Whether this affirmative defense was true or not was a question of fact to be solved by the jury under an appropriate instruction from the court.'

The state does not question the above cited rule but contends that the court's charge correctly submitted the law with regard to this element of the case ¹ and that the affirmative defense was not properly raised.

The court charged the jury only as to the possession element of the offense. Nothing in the charge mentions lack of knowledge. Where this issue is properly raised, failure to give an affirmative charge on the knowledge issue is reversible error. e.g. Goldman v. State, Tex.Cr.App., 468 S.W.2d 381; Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Fawcett v. State, supra.

The rule for determining when an affirmative charge on a defense theory should be submitted is stated in 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660:

'A defensive theory when raised by the evidence should always be submitted to the jury. The defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting. Where the truth of the testimony is for the jury to determine, a charge on a defensive issue raised by the testimony should be given, even if the trial court is of the opinion that the testimony is not entitled to credence.'

In the instant case, the contraband was found in a utility room behind the appellant's residence. The door to the room was always open and had no lock. Neighbors and friends had access to and used the room. One officer testified that he had conducted several investigations in answer to calls from residents of the neighborhood who had found marihuana hidden on their property.

While appellant did not take the stand, his wife testified that appellant could not have possessed marihuana on the day and at the place stated by the informant, since during that time the entire family had been out of town. She testified that several of appellant's friends had been in the room recently. Upon being shown the marihuana by the officers at the time of the search she stated: 'Which of your friends did this to you?' ²

Through the cross-examination of the officers and through the testimony of appellant's wife, the theory was raised that the informant had planted the marihuana in the utility room.

The question before this court is not whether we believe appellant's defensive theory or whether the jury would have found for him under a proper charge. The question, instead, is whether the jury reached its decision after having properly been charged as to the law. Under the charge given by the court, the jury could have convicted even if they believed that appellant was unaware that narcotics were hidden on his property.

The charge requested by appellant was substantially the same charge that was approved by this court in Hernandez v. State 137 Tex.Cr.R. 343, 129 S.W.2d 301, 305, a case in which the only testimony raising the issue was that of accused's wife. The trial court's failure to charge on the defensive theory in the instant case constitutes reversible error. e.g. Goldman v. State, Tex.Cr.App., 468 S.W.2d 381; Harris v. State, Tex.Cr.App., 465 S.W.2d 175; Rodriguez v. State, supra; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716; Fawcett v. State, supra.

This error was compounded when the trial court also refused appellant's requested charge on circumstantail evidence. ³

The distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proven. Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269; Beason v. State, 43 Tex.Cr. 442, 67 S.W. 96.

In the case at bar, no witness saw appellant exercise any control over the contraband. Nor was the contraband found within appellant's residence, where he would have had sole access to it. Instead, the marihuana was found at a place on appellant's property which was accessible to anyone.

There is direct evidence that marihuana was present on appellant's property. ⁴ However, there is no direct evidence that appellant possessed such contraband. This, the ultimate fact which the state had to prove, could only be inferred from the proof of the minor fact that the contraband was present on the property. Possession was thus proven by circumstantial evidence, and the trial court committed reversible error by failing to give appellant's requested charge thereon. See Denny v. State, Tex.Cr.App., 473 S.W.2d 503; Arsiaga v. State, 372 S.W.2d 538; Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623.

The state's motion for rehearing is overruled.

For the reasons herein stated, the judgment is reversed and the cause is remanded.

DOUGLAS, Judge (dissenting).

The officers found two 'cartuchos', substantially a pound, of marihuana in a wall in a utility room which was some three feet from appellant's home in a brown paper sack between 'two by fours' or studs that held the sheetrock in place. A handsaw was hanging over and completely covering the hole where the marihuana was found. The appellant told the officers that he had been making some repairs to the building by himself.

When the marihuana was found, the appellant's wife was allowed at look at it. She then stated to the appellant, 'Now, let's see your friends get you out of this.'

On original submission this Court reversed because the court refused the following requested charge:

'Testimony has been entered here that someone other than the defendant without defendant's consent or knowledge committed the offense in question and that the defendant was not and could not have been the person who committed the same. Now if you find that the marihuana was found in the premises which were under the care, custody or control or management of said house but you further find that the defendant was not the person who placed the marihuana in defendant's house and further find that if it was found in defendant's house that he did not have knowledge thereof, and did not consent the marihuana to be placed in his house, or if you have a reasonable doubt thereof, you will find the defendant not guilty.'

The testimony shows that the officers explained to the...