Williams v. State, 46275

• Decision Date: 17 July 1973
• Docket Number: No. 46275,46275
• Citation: 498 S.W.2d 340
• Parties: Herman Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 340

498 S.W.2d 340

Herman Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 46275.

Court of Criminal Appeals of Texas.

July 17, 1973.

Rehearing Denied Sept. 19, 1973.

Delmar L. Cain, Austin, for appellant.

Robert O. Smith, Dist. Atty., Michael J. McCormick, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: heroin. Punishment was assessed at twelve years.

Appellant's sole contention on appeal is that the evidence is insufficient to support the conviction.

The record reflects that a search warrant was issued for the search of a trailer at 1307 Walnut Street in Austin. Utilities for the trailer were registered in the name of the appellant. The officers that obtained the search warrant had information that the appellant, Carolyn Morris, Robert 'Bilbo', and other unknown persons were staying at the trailer.

On September 22, 1971, at approximately 1:00 A.M. seven members of the Austin Police Department went to the trailer to execute the search warrant. Upon entering the trailer, Carolyn Morris, Rose James, and Robert Owens were observed in a living room area. The appellant was in the kitchen area and the officers observed 'needle marks' of an undetermined age on his left arm.

A search of the trailer was conducted and two packages of heroin were found in the east bedroom, lying on top of the dressing table. A hand wrapped cigarette butt, containing what appeared to be marihuana, was found in a trash can in the same east bedroom.

The appellant, Robert Owens, Carolyn Morris, Rose James and Jimmy James White were arrested and charged with possession of heroin.

The conviction will be reversed. At most the evidence shows that: (1) even though the appellant was in the trailer house at the time the search warrant was executed, he was not found to be in personal possession of narcotics; (2) since four other persons were present on the scene, and the evidence shows 'were also staying there,' when the search warrant was executed, appellant was not shown to be in exclusive possession; (3) since the narcotics in question were found on the dressing table in one bedroom, and appellant was in the kitchen of the trailer, sufficient 'close proximity' is not shown; (4) even though 'needle marks' were on appellant's arm, the witnesses testified that they could not determine whether they were recent; (5) even though the evidence shows that the utility bills for the trailer were in appellant's name, no other evidence, other than the fact of appellant's presence, was introduced to show he occupied the premises. See and compare Collini v. State, Tex.Cr.App., 487 S.W.2d 132; Harvey v. State, Tex.Cr.App., 487 S.W.2d 75; Hausman v. State, Tex.Cr.App., 480 S.W.2d 721; Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Carr v. State, Tex.Cr.App., 480 S.W.2d 678; Ramos v. State, Tex.Cr.App., 478 S.W.2d 102; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.

In Collini v. State, supra, at page 136, of 487 S.W.2d this court held, in a unanimous opinion:

'In the case at bar there is conflicting evidence as to the place of residence of the appellant. . . . an inference can still be drawn from the evidence that he had possession and control of the premises where the heroin was found, i.e., 247 Venice. This possession and control of the premises is, however, not exclusive. Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the narcotic and had control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the narcotic. Harvey v. State, supra (Tex.Cr.App., 487 S.W.2d 75); Adair v. State, supra (Tex.Cr.App., 482 S.W.2d 247); Payne v. State, supra; Hausman v. State, supra. See Petty v. People, 167 Colo. 240, 447 P.2d 217 (1968), and cases there cited.'

The judgment is reversed and the cause remanded.

ROBERTS, Judge (concurring).

Though I agree with the result reached in this cause, I feel compelled to state why, in light of the questions raised by the two dissents.

Judge Morrison states that the fact that the utilities were registered in appellant's name distinguishes this case from Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969), and he dissents for that reason. Consider the facts in Culmore, compared to the present cause:

The defendant and four other people were found in the den of a residence and marihuana and a pipe were found in a bedroom. There was testimony that there was a strong odor of marihuana in the bedroom And in the den. Further, a packet of cigarette papers was found In the accused's pocket, and the accused testified that he had never rolled his own cigarettes, but smoked only ready rolled cigarettes. He testified he had never seen these cigarette papers allegedly taken from his person.

I find it inconceivable and inconsistent to reverse the Culmore case, an even stronger fact situation, and affirm the present case. The facts in this cause have been set out twice already, but I would add the trailer house in question had Two bedrooms; there were 'other persons' staying there, but it was never shown how many; and appellant was never shown to be occupying this 'back' bedroom in which the narcotics were found.

To hold appellant culpable because the utilities were in his name, and he had 'what appeared to be needle marks' on one arm, of completely undertermined age, would be contrary to the prior position taken by this Court. I quote from Collini v. State, cited by the majority:

'The evidence presented by the State must affirmatively link the person accused of possession to the narcotic which he is alleged to have possessed. . . . This affirmative link is established by showing additional independent facts and circumstances which may indicate the accused's knowledge of the narcotic as well as his control over such.' (Citations omitted)

Such independent facts and circumstances are lacking in this present cause. There was no testimony that appellant made any attempt to escape; there was no testimony that he made any motion or furtive movement or gesture toward the room where the heroin was found; there is no evidence of any incriminating res gestae statements made by this accused.

As for Judge Douglas' dissent, his concern seems to be that we are laying down an entirely new rule in possession cases. I disagree. Certainly, each case will have...