Woods v. State

• Decision Date: 04 February 1976
• Docket Number: No. 51393,51393
• Court: Texas Court of Criminal Appeals
• Parties: Donald S. WOODS, Appellant, v. The STATE of Texas, Appellee.

Page 16

533 S.W.2d 16

Donald S. WOODS, Appellant, v. The STATE of Texas, Appellee.

No. 51393.

Court of Criminal Appeals of Texas.

Feb. 4, 1976.

B. J. Edwards, Abilene, for appellant.

Ed Paynter, Dist. Atty. and Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from an order revoking appellant's probation and imposing a four-year sentence upon him. On April 24, 1975, appellant pleaded guilty to the offense of credit card abuse and received a four-year probated sentence. A motion to revoke appellant's probation was filed on May 20, 1975. At the June 13, 1975 hearing thereon, the motion charged appellant with violating the terms of his probation by being in possession of a usable quantity of marihuana of less than two ounces. After the hearing, the court revoked appellant's probation upon a finding that the allegations in the motion had been substantiated.

Appellant challenges the sufficiency of the evidence to support the revocation of his probation. On May 17, 1975 Abilene police officers executed a search warrant at 1705 South 3rd, Apt. 214 in Abilene. Inside they found appellant and one John Powell in the living room. A Sherrill Cherry was in the bathroom flushing marihuana down the toilet. Marihuana and various articles of paraphernalia were found all over the apartment.

Some potted marihuana plants were found on top of the refrigerator in the kitchen and in a coffee can on the kitchen bar. Some burned marihuana cigarette remains were found in the trash under the kitchen sink and in a cigarette package found in the southwest bedroom. Marihuana residue was found in the vacuum cleaner in the hall and a cardboard container under the bathroom sink, as well as in two small containers found in the southwest bedroom. This bedroom also yielded a pipe containing marihuana residue and packages of cigarette papers in the dresser and in a white jacket in the closet. Marihuana seeds were found under the cushions of the sofa in the living room and in a small cardboard box on the shelf of a closet in the northwest bedroom. This box also contained a roach clip and two envelopes. One envelope, postmarked eight months prior to the search, was addressed to 'Donald S. Woods, Jr.' and the other envelope, of indeterminate date, was addressed to 'D. Woods.' Both envelopes were from record clubs. Both envelopes were sent to the same post office box at Dyess Air Force Base, not to the apartment on South 3rd. Officers testified that other 'personal papers' of appellant were found in the northwest bedroom, but nonesuch were introduced into evidence. The closet contained no clothes.

No marihuana or paraphernalia was found on the appellant. Nor did he attempt to flee, or make any spontaneous utterances or furtive gestures upon the officers' arrival. They testified that the apartment contained the odor of burning incense, but not marihuana; there was no evidence that any of the occupants appeared to be under the influence of any drugs. It was not shown to whom the apartment belonged.

In order to prove possession, the State is required to show that the appellant exercised actual care, control and management over the contraband and that he had knowledge that the same was contraband. Guitierrez v. State, Tex.Cr.App., 533 S.W.2d 14 (this day decided); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974). Possession of contraband need not be exclusive and evidence which shows that the accused jointly possessed the contraband with another is sufficient. Long v. State, Tex.Cr.App., 532 S.W.2d 591 (delivered Dec. 10, 1975); Abercrombie and Dean v. State, 528 S.W.2d 578 (Tex.Cr.App.1975); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). But mere presence at a place where contraband is found, even in close proximity if not in plain view, does not, in itself, justify a finding of joint possession. Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975); Curtis v. State, supra; Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972). There was no marihuana in plain view in the living room where appellant was found.

Where an accused is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the contraband and control over it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Higgins v. State, supra; Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Long v. State,supra; Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974); Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973). The only evidence besides appellant's mere presence which would tend to link him to the marihuana found in this case was the two envelopes found in the closet of the northwest bedroom.

In both Williams v. State, 521 S.W.2d 275 (Tex.Cr.App.1975) and Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973) the defendants paid the utility bills at the premises where the contraband was discovered. In the later Williams case, the defendant was not present at the time of the search, but the woman who was present claimed to be his wife. In the earlier Williams case, the defendant was present but not in the bedroom in which the contraband was discovered. No letters, clothing or other articles belonging to the defendants were found on the premises. The evidence of possession was held to be insufficient in both cases.

In Higgins v. State, supra, LSD was found in the refrigerator in the kitchen and two letters addressed to the defendant at that house were found in the adjoining dining room. The letters, however, were postmarked 5 1/2 months before the search, and even though Higgins was present at the time of the search the evidence was held insufficient to link him to the contraband. And in Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972), defendant's driver's license was found in a box containing marihuana in a house shown to be rented to two others. Reid was not present when the search began, although she arrived fifteen minutes later. The evidence of possession was held to be insufficient, partly because there was no showing that the address on the driver's license was the same as the premises searched or whether the license was still valid or expired.

On the other hand, evidence of possession was sufficiently linked to the defendant in Hineline v. State, supra, where a homestead affidavit in his name was found on top of a dresser in which marihuana was found and marihuana residue was found on paper in a box addressed to him at the premises searched. And in Curtis v. State, supra, letters...