Waldon v. State, 57211
| Decision Date | 18 April 1979 |
| Docket Number | No. 1,No. 57211,57211,1 |
| Citation | 579 S.W.2d 499 |
| Parties | Thomas Gardner WALDON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Kerry P. Fitzgerald, Dallas, for appellant.
Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton and Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and PHILLIPS and W. T. DAVIS, JJ.
This an appeal from a conviction for possession of more than four ounces of marihuana, wherein the jury assessed punishment at five years in the Department of Corrections and a $5,000.00 fine.
At the outset the appellant challenges the sufficiency of the evidence.
This case involves the same transaction as that discussed Gaffney v. State, Tex.Cr.App., 575 S.W.2d 537, and the same preliminary facts were adduced at the trial of appellant. Part of the statement of facts from that opinion is quoted here.
For some time prior to April 28, 1976, Officer Severn of the D.P.S. Intelligence Service was in contact with a confidential informant concerning other controlled substance transactions. In the course of these discussions, the instant transaction was revealed in general terms. Then, on April 28, 1976, between 9 and 10 a. m., the confidential informant advised Officer Severn that a load of marihuana was to be flown into the Terrell, Kaufman County, Texas, airport that night, around midnight, from Mexico. The make and identification number of the plane were provided, as was the pilot's name. Officer Severn related this information to D.P.S. Narcotics Officer Spencer. At approximately 9:30 p. m., Officers Severn and Spencer arrived at the Terrell airport to maintain surveillance and seize the smuggled contraband when it arrived. At approximately 11:30 p. m., Officer Severn contacted his informant, who had previously provided reliable information, and was advised that due to inclement weather the airplane was diverted to the Temple, Bell County, Texas, airport. The informant described the vehicles, their license numbers, and their drivers' names which were en route to rendezvous with the plane by way of Interstate 35. Officer Severn set out towards Temple while Officer Spencer related all the information to the Waco regional office of the D.P.S.
D.P.S. Narcotic Agent Aycock received Officer Spencer's phone call around 12:05 a. m. on April 29. He was advised of the recent developments, . . . (and to be on the lookout for a 1975 Chevrolet Blazer, license number EV4103 and a 1976 blue Chevrolet pickup truck with a light camper, license number ER5181 in route from Dallas to the Temple airport.) . . . At 12:15 a. m. Agent Aycock advised Agent Mayben of the Temple office of this same information. Mayben in turn requested assistance of the Temple City Police Department. At 12:35 a. m. Agent Aycock proceeded to the Hewitt Exit South on I.H. 35 to look for the motor vehicles which were observed at 1:15 a. m. travelling at about 80 to 85 miles per hour. Surveillance of these vehicles was maintained from this point, . . .
At approximately 1 a. m. and prior to the arrival of the vehicles at the Temple airport, several officers proceeded immediately to the airport terminal where one of the officers entered the terminal area and observed the night watchman and the appellant who was seated in the terminal facing toward the airplane parking area of the airport. The "suspect plane" was parked in the back parking area of the terminal at this time.
Surveillance of the terminal area then began from a nearby cemetery and was aided by the use of binoculars.
The vehicles entered the airport at about 1:30 a. m. The Blazer vehicle entered the road to the airport, made a U-turn and parked facing the highway. The pickup proceeded to the terminal, momentarily stopped and then continued from the front of the terminal around to the side and to the back of the terminal in the area where various airplanes were parked. The suspect aircraft was in the area at that time and parked in a northernly direction and was the only such airplane parked in that direction. Movement of more than one unidentifiable person was observed at this time as if something was being carried from the airplane to the pickup truck. Within about 15 minutes, the pickup left the area and eventually travelled toward the Blazer and then both vehicles proceeded toward the entrance gate where they were stopped by law enforcement authorities.
The record reflects that both vehicles were searched. Thirty one packages containing 572 pounds of marihuana were found in the pickup camper and its driver and sole occupant, Michael Gaffney, was arrested. A ground-to-air radio was also found in the pickup. This Court recently affirmed Gaffney's conviction for possession of more than four ounces of marihuana. Gaffney v. State, supra.
The driver of the Blazer, Dan Wilkes, was also arrested, along with the appellant who was in the passenger's seat of the Blazer. No marihuana was found in the Blazer or on the person of Wilkes or the appellant. Several maps of Mexico, a transmitter, a following device detector, rental receipts inside a flight bag, and what was purported to be the appellant's driver's license and some of his clothing, as well as seats from the suspect plane, were found in the Blazer.
A key was taken from the appellant to open the door of the suspect plane. A search of the plane disclosed "marihuana sweepings" which amounted to .25 grams of marihuana.
The record also reflects that a Mr. Lallier in April of 1976 was vice-president of High Performance Aviation in Dallas and had occasion to lease an aircraft to one "Tom Waldon" during the latter part of April 1976. Subsequently, the aircraft was seized by the Department of Public Safety. Lallier did not see the "Tom Waldon" fly the airplane off and could not identify the appellant in open court as the "Tom Waldon" in question.
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