Wilkes v. State, 55179

• Decision Date: 25 October 1978
• Docket Number: No. 55179,No. 1,55179,1
• Citation: 572 S.W.2d 538
• Parties: Dan Allen WILKES, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 538

572 S.W.2d 538

Dan Allen WILKES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 55179.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 25, 1978.

Charles L. Caperton, Dallas, for appellant.

Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana, wherein the jury assessed punishment at five (5) years in the Department of Corrections and a $5,000.00 fine.

In his sole ground of error, appellant contends that the evidence is insufficient to support the verdict.

The record reflects that at approximately 12:05 a. m. on April 29, 1976 Officer John Aycock of the Texas Department of Public Safety received a phone call from an agent in the department's Dallas office. After receiving this call, Aycock and several other agents set up surveillance for a Chevrolet pickup with a camper and a 1975 Blazer, allegedly traveling together. Aycock testified that he set up his surveillance on Interstate 35 close to Waco and directed the other two agents to set up between Waco and Temple.

At approximately 1:15 a. m., Aycock observed the vehicles traveling in a southerly direction on Interstate 35 in the direction of Temple. Aycock and the other officers followed the two vehicles to Temple, where they stopped for a short time at a restaurant and continued on to the Temple airport. When the vehicles reached the airport, Aycock withdrew his personal surveillance in favor of Department of Public Safety agents already set up to watch the airport. One of these officers, Agent Ronald Tucker, testified that he saw the vehicles enter the airport at approximately 1:35 a. m. Tucker stated that his surveillance took place from a nearby cemetery and was aided by the use of binoculars.

According to Tucker, the Blazer parked in front of the terminal to the airport while the pickup drove on to an area where airplanes were tied down and backed up to the side of the twin engine craft. Due to weather conditions and the position of the pickup, Tucker was unable to see what took place next but stated that: "They appeared to be moving something is all I could tell, back and forth from the pickup to the plane." Shortly after this, the pickup pulled away from the plane and drove to the terminal at which the Blazer was parked. A few moments later, both vehicles drove through the main gates of the airport, where they were stopped by Aycock and the other two officers who had been waiting there.

The record reflects that both vehicles were searched. Thirty-one "compacted packages" containing 572 pounds of marihuana were found in the pickup camper and its driver, Michael Gafney, was arrested. A ground to air radio was also found in the pickup. Several maps of "Mexico and South American type terrain," a transmitter and a following device detector were found in the Blazer, which was driven by the appellant. Also found in the Blazer were rental receipts for airplane seats from the twin engine airplane observed by Agent Tucker and an electronic transmitter-detector. In addition to these items, the officers found the key to the same airplane in the possession of Tom Walden, a passenger in the Blazer at the time of the stop. Upon searching the airplane, the officers found what were described as marihuana "sweepings and seeds and so forth." No marihuana was found in the Blazer or on the person of the appellant.

An accused may with another or others jointly possess dangerous drugs or narcotics. Thus, possession of such items need not be exclusive and evidence that the accused jointly possessed narcotics with others is sufficient to sustain a conviction. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975), and cases cited therein. It must be remembered, however, that mere presence alone at a place where narcotics or dangerous drugs are being used or possessed by others does not justify a finding of joint possession. Ayers v. State, 570 S.W.2d 926 (# 55,365, delivered 9/5/78); Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977). It has been consistently held in this state that...