Warmowski v. State

Citation818 S.W.2d 505
Decision Date09 October 1991
Docket NumberNo. 04-90-00596-CR,04-90-00596-CR
PartiesJohn P. WARMOWSKI, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

William J. Salyer, San Antonio, for appellant.

Steven C. Hilbig, Daniel Thornberry, Crim. Dist. Attys., San Antonio, for appellee.



CHAPA, Justice.

Upon the State's Petition for Discretionary Review, the opinion of this court dated August 30, 1991 is withdrawn, and the following opinion is substituted therefore.

Appellant was indicted in Cause No. 89-CR-0833C for possession of methamphetamine under 28 grams, and in Cause No. 89-CR-0834C for possession of cocaine under 28 grams. The two causes were consolidated, and appellant was put to trial on both causes and in the same proceeding, before the same jury. Prior to trial, pursuant to TEX.PENAL CODE ANN. § 3.04(a) (Vernon 1974), appellant moved for severance of the two causes, and the motion was denied. The jury returned a guilty verdict on both causes and appellant was sentenced to ten years' confinement, probated, and a fine of $500 in each cause. Later, the court granted a motion for arrest of judgment as to the cocaine conviction. Appellant appeals his conviction for the methamphetamine offense. We reverse.

The dispositive issue is whether the trial court committed reversible error in denying appellant's motion to sever under § 3.04(a). However, we are also required to address appellant's challenge to the sufficiency of the evidence.

On January 3, 1989, officers executed a search warrant at a residence where appellant was found with two other males. All three men were within reach of narcotics and drug paraphernalia, such as vials, syringes, scales, and a snorting mirror. When the officers entered the residence, appellant tried to throw away a razor with white powder on it. The smell of methamphetamine pervaded the room. Appellant was arrested and charged with possession of methamphetamine and cocaine.

To prove unlawful possession of a controlled substance, the state must show (1) that the defendant exercised care, control, and management over the substance, and (2) that he knew that what he possessed was contraband. Humason v. State, 728 S.W.2d 363, 364-65 (Tex.Crim.App.1987); McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App.1985). These elements may be proved by circumstantial evidence. McGoldrick, 682 S.W.2d at 578; Sewell v. State, 578 S.W.2d 131, 135 (Tex.Crim.App.1979). It is not sufficient to show that the defendant was merely present in the vicinity of a controlled substance. Humason, 728 S.W.2d at 365. The State must also provide evidence of affirmative links between the defendant and the substance. Id. at 365-66.

A defendant's possession need not be exclusive. McGoldrick, 682 S.W.2d at 578; Sewell, 578 S.W.2d at 135. It is sufficient to prove that he jointly possessed the substance with others. Id. When the defendant is not in exclusive possession of the place where the contraband is found, it is necessary to prove "additional independent facts and circumstances which affirmatively link the accused to the contraband." Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981).

In reviewing the sufficiency of the evidence, we must determine whether, considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

Applying these principles, we find the evidence sufficient to support the conviction. The drugs were in plain view and appellant was near them. See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App.1987); Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App.1981); Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App.1981). Also nearby, in plain view, were items commonly used to ingest and package drugs. Officers testified that the kind of scales present are commonly used to measure and weigh drugs, the mirror was like those used to snort cocaine through the nose, and there were straws, spoons, syringes, and vials present. See Chavez v. State, 769 S.W.2d 284, 289 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd); Leija v. State, 738 S.W.2d 749, 751 (Tex.App.--San Antonio 1987, no pet.); Curren v. State, 656 S.W.2d 124, 131 (Tex.App.--San Antonio 1983, no pet.). The odor of methamphetamine--one officer testified that the room "reeked"--is also an affirmative link that tends to show knowing possession of the drugs present. See Duff v. State, 546 S.W.2d 283, 287-88 (Tex.Crim.App.1977); Chavez, 769 S.W.2d at 289; Leija, 738 S.W.2d at 751. One additional link was appellant's furtive attempt to discard the razor, which the officers said is commonly used to package drugs. See Pollan, 612 S.W.2d at 596; Chavez, 769 S.W.2d at 288; Earvin v. State, 632 S.W.2d 920, 924, n. 5 (Tex.App.--Dallas 1982, pet. ref'd). The evidence is sufficient to sustain the conviction.

We now address the dispositive issue of whether the trial court committed reversible error by denying appellant's timely motion for severance. TEX.R.APP.P. 90.

The State and the dissent concede that under the provisions of TEX.PENAL CODE ANN. § 3.04(a) (Vernon 1974), the trial court erred in denying appellant's motion to sever, but insist that the court's error is subject to the harm analysis of TEX.R.APP.P. 81(b)(2). The State and dissent further insist that even if the court had granted the severance, because of the "res gestae" principal of law, evidence of each of the two offenses was nevertheless admissible at the trial of either offense; therefore, this is sufficient showing, beyond a reasonable doubt, that the error was harmless. We disagree.

To sustain their contention, the State and dissent misplace their reliance on Ponder v. State, 745 S.W.2d 372 (Tex.Crim.App.1988). Ponder, is clearly distinguishable in that it involves the application of art. 21.24, which no one even suggests is "mandatory," but rather is a permissive statute providing that "[t]wo or more offenses may be joined in a single indictment ... if the offenses arise out of the same criminal episode...." Ponder, 745 S.W.2d at 374; TEX.CODE CRIM.PROC.ANN. art. 21.24 (Vernon 1989) (emphasis added). Unlike § 3.04(a), which is involved in the case before us, art. 21.24 is not "mandatory," and does not contain an unambiguous, legislative mandate which grants an accused a distinct basic and fundamental right. Therefore, Ponder is not controlling here.

While it has not yet been determined that "all 'mandatory' statutes are immune to harmless error analysis," those that "cannot be subjected to a harm analysis in any meaningful manner, because the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error," will require automatic reversal. Sodipo v. State, 815 S.W.2d 551, 554 (Tex.Crim.App.1990); see also Beebe v. State, 811 S.W.2d 604, 605 (Tex.Crim.App.1991). The court in Sodipo further noted that:

[T]he distinctive characteristic of these violations [which require automatic reversal] is that it is extremely difficult to know whether they might have affected the outcome, or the likelihood that they have influenced the outcome is so strong that it is not worth expending the judicial resources necessary to evaluate the effect of the error in particular cases....

Sodipo, at 554-555.

In Sodipo and Beebe, the Texas Court of Criminal Appeals held that the provisions of TEX.CODE CRIM.PROC.ANN. art. 28.10(a) (Vernon 1989) are mandatory; that the denial by the trial court of appellant's requested additional ten days pursuant to art. 28.10(a) and upon permitting the State to amend the indictment, constituted error; and, that the error required automatic reversal without a harmless analysis under TEX.R.APP.P. 81(b)(2). Beebe, at 605; Sodipo, at 554. Art. 28.10(a) provides:

After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

TEX.CODE CRIM.PROC.ANN. art. 28.10(a) (Vernon 1989) (emphasis added).

In Waythe v. State, 533 S.W.2d 802, 804 (Tex.Crim.App.1976), the Texas Court of Criminal Appeals held "that Sec. 3.04(a) [V.T.C.A., Penal Code] is mandatory and that the trial court erred in failing to grant the appellant's motion for severance"; and "[t]he judgment of the trial court is reversed and the cause is remanded." Additionally, the court stated:

Plainly, the section [Sec. 3.04(a) ] now under consideration was adopted by our legislature with the intent to follow the ABA standards then presumptively known to it. The legislature, just as did the ABA, used the word "shall" in giving the accused the right to a severance. We have no ambiguity; instead, we have a command by the law-making body which we must enforce. (Emphasis added).

In Brinkley v. State, 167 Tex.Cr.R. 472, 320 S.W.2d 855, 856 (1958), the Court stated: " 'Must' and 'shall' are synonymous and are usually mandatory when used in statutes."


In Overton v. State, 552 S.W.2d 849 (Tex.Crim.App.1977), the court made the following statement in a similar case:

However, V.T.C.A., Penal Code, Sec. 3.04, mandates that an accused has the right to a severance of such joined offenses.... See Waythe v. State, Tex.Cr.App., 533 S.W.2d 802. When a request is made to sever, the trial court must grant the request, and failure to do so results in reversible error....

Id. at 850 (emphasis added) (footnote omitted containing language of § 3.04).

In Wedlow v. State, 807 S.W.2d 847 (Tex.App.--Dalla...

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