*1 H9 21, 1973, concurrently and to run March outstanding sentences. prayed granted. for is
The relief
ROBERTS, J., concurs in result. ARMSTRONG, Appellant, W.
Warren Texas, Appellee.
The STATE
No. 51509. Appeals of Criminal of Texas. 7, July 1976. Paso, Chagra, appellant. El for Chagra & to File Motion for Leave State’s Simmons, Wil- Atty., W. Dist. Steve Rehearing Denied Oct. 1976. Paso, Ellis, Atty., Dist. El Jim liam J. Asst. Vollers, Atty., David
D. State’s S. Austin, Atty., for McAngus, Asst. State’s the State.
OPINION ODOM, Judge. appeal from conviction
This Punishment was possession of marihuana. years. at six assessed Initially, appellant challenges the suffi- Second, asserts evidence. ciency of the refusing request- erred the trial court ed on circumstantial evidence. suppress Evidence heard on the motion to m. approximately reveals that at 11:30 a. 7, 1970, Officer Gomez of the El October Department received informa- Paso Police a confidential informant that a tion from in four suit- shipment of marihuana loaded shortly be of El Paso cases would taken out its location by airplane. The described. were jury reveals received before the Evidence Aguirre the El Paso Police that Officer call on the Department received radio directing him morning of October *2 get so the he repairman could in when was Rangers the Southwest Air area of the not there. Airport. El Paso He arrived and com- surveillance approx- menced had con- filed two motions for State imately present at noon. No one was for tinuance, alleging in each that Watson was forty Ap- first minutes of the observation. available and: not then then arrived to the air- pellant and went is be- testimony of this witness “The began He the preparing plane for plane. by Applicant the lieved to be material for service, Rang- walked to the Air Southwest State, as by shown it is fact that building briefly, then returned to ers and expected said witness will establish plane. following facts: That the defendant minutes later a arrived with WARREN ARMSTRONGknew that the Ten taxi involved in Watson and four suitcases. Wat- suitcases the above cause con- Richard a substance mari- appellant and each two suitcases tained believed to be son carried plane placed juana, therefore cargo and them the and will link the defend- the marijuana establishing appellant Both boarded and start- ant with section. engines. and Aguirre Officer and other control thereof.” ed plane on the scene surrounded the officers also reflects The record that Watson was Aguirre their vehicles. jumped with present testify and available to for the wing pilot’s on the side and ordered testify. that he was but not called to stop engines, he lant which did. The presented no The State evidence inconsist- then re- plane officers boarded the and appellant’s testimony. ent suitcases, the four were moved which found sum, against ap- the State’s evidence contain marihuana. (1) consisted of this: interior two plane had seats carrying seen two of Watson’s suitcases forward, one pilot, for the and the area (2) taxi to plane; from the the trained adapted these seats had been for behind smell the marihuana officer could (marihua- carrying cargo. Four “roaches” plane; (3) four suitcases “roaches” cigarette butts) na were found closed ashtrays cargo in closed were found area, ashtrays cargo located in the and an plane. area of the that officer testified he knew the smell of strength of the first item is diminish- and could marihuana smell the marihuana by evidence that the suit- ed uncontradicted was in the he that suitcases when boarded appear their cases unusual or reveal did plane. The strength contents. of the second is flying testified that he was a officer diminished several factors. The for company subcontractor handled he recognize testified that could the smell staying and that he in El explosives, working because “I of marihuana have been briefly for instrument refueling years pretty Paso fifteen narcotics for and I can He repairs. marihuana,” was en route California smell of where- well detect cargo repairs per- without have other was not shown to know the pick up cargo carry pre- and to back formed smell of marihuana and not be expert east he met Fi- knowledge.1 to the coast. He testified Wat- to have such sumed agreed provide in El Paso and him third item is nally, son diminished plane on his rates the unrefuted passage strength California range private during appel- charters. He plane usual access to the others had was left un- testified that his absence the State’s evidence also lant’s parked, burning no in the location where it was there was smell marihuana locked Moreover, agreed the officer it would Watson and the suitcases 1. who drove airport helped been more difficult to detect the smell have Watson that he had testified allegedly emanating taxi, from the suitcases when place suitcases in the they air”, they “open were in the which were any unusual smell. never detected The taxi driver when carried them. closed, ar- at the time of of narcotics influence All ashtrays were ...” rest. to call by the State’s failure weakened were Ysasaga v. Tex.Cr. Cf. Watson.2 inside respect to roaches found With 305. App., 444 S.W.2d ashtrays con- airplane, we note that the the com- taining roaches were located in State, Tex.Cr.App., 502 In Powell v. *3 that there plane, of the and cargo mon area 705, it was held: others, in- undisputed was charged with an accused “When repairmen, cluding or more had had one of a narcotic or dan- possession unlawful airplane days several im- for access to prov- drug, must be gerous two elements preceding day appellant’s of mediately control, care, (1) that he exercised en: arrest, appellant at times when was not and contraband; management over the and Hence, appellant had not been in present. object pos- (2) that he knew the and airplane. of exclusive contraband, omit- was sessed [citations State, Tex.Cr.App., v. Higgins affirmatively evidence must ted] 268, 270, we said: the narcotics in such the accused to link in exclusive “Where an accused not to that a manner and such an extent premises, it cannot be possession of may arise that inference reasonable knowledge that he had of concluded existence of the narcotic’s accused knew and control over it unless there narcotic whereabouts.” and independent and cir- facts are additional suitcases, evi- respect to the With which link the accused to the cumstances appellant to show that dence is insufficient narcotic.” contained marihuana. The mere they knew Accord, State, Tex.Cr.App., Hernandez v. paying passenger fact that he assisted 782. 517 S.W.2d airplane carrying the suitcases cir showed no additional knowledge support finding sufficient linking the the con accused to cumstances any more than would have been suffi- ashtrays. evi in the closed traband support finding respect such a cient respect to ei was insufficient with dence placing the taxi driver who assisted in roaches. knowledge or control of the ther the taxi. the suitcases in The State any holding find case We are unable independent to show circumstances bound upon sparse so a record evidence sufficient marihuana, linking the accused to the and it linking sort For the of additional as this. contrast, By v. none. in Powell showed be sufficient circumstances State, following supra, the was shown: conviction, see Brooks (1) people . three were seen . . 535; Granfil v. Tex.Cr.App., 529 S.W.2d airplane Powell ranch where the 518; Wil Tex.Cr.App., 525 S.W.2d met; (2) people pickup the three 705; State, Tex.Cr.App., 524 S.W.2d liams unloading appeared bundles State, Tex.Cr.App., 519 Curtis (3) pickup; the back of the plane into 883. person one took off in the reasons, court the trial For similar pickup left in the and were people two refusing requested circum on also erred stopped in it when it was later found charge. In Ramos v. stantial (4) highway; stat stopped; (5) it was a small pickup after ed: ap- on of marihuana was found quantity (6) circumstan-
pellant’s person; there was “The distinction between direct evidence is that under the evidence and appellant appeared to be tial hearsay hearsay upon pilot. This was testified outside the hear- 2. Gomez also Officer probative jury during hearing witnesses value. No ing the mo- and without alleged were called suppress present conversation informant at the confidential tion to given explanation testify suppliers was an told the nor him that the Mexico told they, suppliers, had talked absence. their informant applies directly the latter to the ultimate testified that Mary- he lived in proven, fact to be while circumstantial land and flying was a subcontractor for a proof evidence is the direct of a minor company that only explosives; handled which, logical inference, fact demon- he was a mechanic and a pilot, rated strates proven.” the fact to be that he owned Aztec where the ' case, marihuana was found. Prior to the In the instant as in date in Ramos v. question he supra, no witness had never been in El saw Paso. He exercise over landed in El days control the contraband in such Paso some two a man- before his ner that arrest to refuel. marihuana was He had no intent of land- shown. The contraband in the ashtrays ing there originally. As he landed he was place was not in a where appellant had sole operator told that a of his radar access it. Cf. Harris v. Tex.Cr. reception equipment was not operating App., Therefore, 88. there was properly and because there be heavy would no direct evidence that knowingly traffic where *4 going he was he wanted it possessed any Instead, of the marihuana. repaired. He related that he ordered fuel only the there were minor facts that and talked to a man repairing about lant carried two suitcases containing mari- equipment. He Holiday asked about a Inn huana and that marihuana roaches were in El Paso. He Holiday went to a Inn and ashtrays found in closed airplane. inside his prices checked the thought he would Therefore, the trial court refusing erred in stay not there but decided he would eat at requested on circumstantial evi- Holiday waiting Inn. While he was Draper dence. Tex.Cr.App., 513 hostess, Watson, he and Richard whom he 563; Selman v. Tex.Cr.App., before, had never seen engaged in conversa- 255; Crawford Tex.Cr. tion together. and decided to eat When 768; App., 502 Ramos v. su- appellant told Watson that he pilot, was a pra. Watson told him that go he wanted to judgment The is reversed and the cause Francisco inquired San to the cost of remanded. flying privately in a aircraft like owned his. agreement Watson made an pay appel- DOUGLAS, Judge (dissenting). approximately lant four times the commer- majority The reverses cial rate this conviction on because Watson stated that he grounds evidence is the scenery private insufficient could see better from a the conviction. plane. agreed He to call Watson the next motel; day. Appellant then went to some Aguirre Officer Juan F. testified that he did not remember which one but it had a four suitcases were carried Watson and expensive Holiday less rate than the Inn. appellant from the taxicab to the plane. Appellant related that while he was getting driver help When cab offered to carry plane ready question on the date in bags appellant said that Watson did not pulled up taxi with Watson. Watson had any help. need Officer A1 Castro testified four appellant helped suitcases and carry that the seats were removed from pas- them to the aircraft. He related that he senger plane. area of the In the ash- two only cargo carried and that he had never trays pilot behind the seat there were three anywhere in that sat area of the cigarette marihuana butts or “roaches”. In plane except pilot ridden in the had not right ashtray co-pilot behind the seat front plane; or in the that he there was another “roach”. Officer Saman- passengers had never carried in the back iego testified that in three of the suitcases area. He related that Watson never told there were sixteen bricks of marihuana and him that there was marihuana in the suit- fourteen the fourth suitcase for a total of cases; sixty-two weight anything bricks. The that he did un- total was 127 not smell they The officers usual in the pounds. testified that suitcases and did not have the plane. could smell the marihuana in the got faintest idea how roaches plane Maryland any or sence from the he testified ashtrays. On cross-examination This might he have flown? Maryland place El other flying he from California; disclaiming like marihuana Monte, reasoning he came down that one weather, others had access and that automobile because for better in his south far Pueblo, placed or Albu- is a new burden on the usually Colorado to it. This went something disprove New Mexico. that within querque, State impossi- of a defendant —an appellant owned shows that The evidence burden. ble normally carry he did not plane; cig- that there were marihuana passengers; appears majority From plane; ashtrays charge anyone arette butts practically useless to strong of marihuana was a odor aeroplane there in an or possession of marihuana suitcases; coming and that when he claims others had other vehicle pounds of contained a total of 127 suitcases to it. access carry helped them marihuana. the evidence. It heard heard they the cab driver that did and informed testify unusual set of coinci- help. any just happened He need requiring and it is to dis- dences dining at a motel room and meet Watson prove testimony. such fly in a Watson wanted to have dinner and majority taking something from scenery look at the private plane and not call proof because State did price of willing pay several times the shows Watson the stand. flight. a commercial *5 possessed pounds 127 of mari- that Watson should be construed in The evidence he in the when arrived taxicab. He huana favorable to the State. Here light most jointly control over it and also exercised plane ciga- owned the with appellant. is it with It reasona- possessed it; plane; he was on the he rette butts to incrimi- people are hesitant ble that most posses- and in their case has been nate themselves before with all the of the marihuana. And sion majority show- require tried. Would the circumstances in this case the facts and ing the witness was called and that he opinion writer is this right Fifth Amendment or have claimed his support the conviction. The sufficient The deductions taken from evidence? jury not bound to believe that disprove any failure call Watson does nothing about the marihuana and lant knew the evidence. ashtrays butts and was not cigarette be affirmed. judgment The should believe that he did not smell mari- bound to jury The was not bound to believe huana. testimony. OPINION ON DENYING They heard him testi- DISSENTING
any of his TO FILE MOTION flight his LEAVE STATE’S story why to his about fy FOR REHEARING which was off the route was there direct Maryland Angeles to the area of Los DOUGLAS, Judge. is The evidence sufficient California. majority motion The overrules the State’s the conviction. with- rehearing to file motion for for leave opinion is that fallacy majority A opinion. by motion filed out written The disprove testimony by State must Simmons, Honorable Steve District At- usually In most cases a crime is defendant. Assistant, Ellis, his William J. torney, and present as as few witnesses committed County, adopted Paso is dissent of El majority states that the evi- possible. The by this writer. butts in cigarette presence dence of strength plane was “diminished I testimony that had the unrefuted others analysis this appellant’s ab- of the cause plane during “In access to majority discussing up his ab- summed the case Is the honorable sence.” 124 herein,
against Appellant
consisting
of three
and this Court’s
strength
then discussed how the
points,
styled
the above
and numbered cause would
Banks,
been
point
appear
of each
had
‘diminished.’ ‘When
to emasculate the rule in
sufficiency
supra,
of the evidence is chal-
et al.
lenged,
required
is
to view the
II
light
evidence in the
most favorable to the
State,
934,
long-standing
“Another
and well-settled
v.
verdict.’ Resendez
495 S.W.2d
seemingly
by this honorable
State,
rule
eroded
(Tex.Crim.App.1973); Pogue
935
492,
opinion in the case at bar
the rule
Court’s
(Tex.Crim.App.1971).
474
494
S.W.2d
finder,
province
of the fact
in this
A discussion of how the evidence favorable
will not be
jury,
case a
invaded in retro-
verdict has been
is not
‘diminished’
spect
appeal.
The
consistent with this rule.
led
this
See also Jones v.
conclusion
virtue of
this honorable
(Tex.Crim.App.1969),
442
698
recitation of
exculpato-
397
90
25 Court’s
cert. den.
U.S.
S.Ct.
143;
ry
concerning
meeting
White v.
478
Wat-
L.Ed.2d
son and the fact that the
was left
(Tex.Crim.App.1972);
Cleaver v.
airport.
at the
The
was not
unlocked
(Tex.Crim.App.1973);
Prov-
obliged,
example,
to believe that
(Tex.Crim.App.
ost
case,
plane was unlocked.
If this was the
1974).
rule in the 5th
is not
Circuit
there would be no merit
in this Court’s
the rule heretofore
inconsistent with
fol-
assumption that others would have had ac-
by this honorable
lowed
Court:
cess to the aircraft.
conviction, which
judgment of
‘A
ground
of insufficient
attacked on
Easley
“In
evidence,
appeal
be sustained on
if
will
(Tex.Crim.App.1972), the issue was whether
favorably
the evidence taken most
for the
possessed
or not the
had
a narcot-
supports the
Government
verdict.
.
drug.
agent
ic
of an
incul-
is entitled to the benefit
Government
him,
pated
while the
testified in
sustaining the
of all inferences
conviction
fashion,
exculpatory
that he
denying
had
reasonably
drawn from the
possessed anything:
*6
“
Davis,
v.
443
evidence.’ United States
jury
opposing
‘The
had before it two
(5th
1971),
560
Cir.
cert. den. 404
F.2d
ques-
day
versions of the events on the
in
945,
298,
92
who 171 Aldridge v. also See credibility weight the witnesses and of Interestingly, nei- in (Tex.Crim.App.1972). testimony.’ given be Solis Aldridge, contrary supra, or Ross ther In Rodri- (Tex.Crim.App.1973). at opinion the case honorable Court’s this guez [Rodriquez] bar, appel- or that an required held was S.W.2d 382 [544 50,659, on handed No. down mari- (Tex.Cr.App.)], know the smell of shown to lant be at the case day huana, of marihuana the same or that the smell recog- bar, correctly only expert. this honorable Court known to an be would function: appellate nized its “In Buntion “ cig- where marihuana (Tex.Crim.App.1972), before this Court is not ‘The issue an automobile testimony; found in arette butts were Appellant’s truth a appellant, but which driven being jury. mínimums, “At bare passenger riding, was also this the case at bar Court found con- requisite linking tains Appellant affirmative link two factors page 319: cigarette marihuana: butts in the ashtray ‘It undisputed appellant was (Buntion, supra), smell of marihua- driving the ear. testified she emanating na from within the which was the owner of car. We deem the (Ross piloting was his and which he was support evidence sufficient the convic- Aldridge, supra). The credulity of the possession tion. The unlawful of mari- thought at the Appel- State is strained huana a need not exclusive to reflect pounds lant could not smell 127 of marihua- violation law.’ the same compartment na in of his Hernandez, supra, “In the court found an Further, riding. in which he was the evi- affirmative link under facts far less con- stronger dence is far than Hernandez necting in than any nature cited cases appellant wherein only denied knowl- bar, well exculpato- as the case at and more edge witness, but where against another ry than the instant case: the car in which penal own interest exonerated appellant. the marihuana was found did not belong to Just as judge was the trier of facts in appellant, marihuana was not in a Hernandez, so the jury in the case at appellant of the car to which had access bar. Consequently, when the evidence is moving, while it was the car had roaches light viewed most sup- favorable to ashtray dash, and ashes in on the appel- port the verdict when fact-finding all denying lant testified authority of the jury unfettered, is left marihuana, appellant’s brother testified evidence sufficient to the verdict. saying the marihuana was his not “The fact that the State did not call the lant’s, and that had no knowledge Watson, was, unconvicted accomplice, but Although of the marihuana. Hernandez in- been, ought not to charged against have it. probation, a volved revocation Under the facts of the case at bar there held that the show an burden affirmative legal could be no presumption that the tes- proceed- link is the same whether the main timony exculpatory would have been as to or a ing be a revocation trial on the merits. Appellant. Roberts v. Hernandez, In pointed had Likewise, 893 (Tex.Crim.App.1972). in view certain out the absence of links that have of Watson’s 5th rights, Amendment there recognized past (e. been as sufficient practical could be no presumption that his g. odor no evidence of an of marihuana in exculpate Appellant. would car). responded This honorable Court case, Having proven facie prima Appellee contention: duty was under no to call Watson. “However, the absence of the above facts and is not circumstances evidence of IV appellant’s innocence to be weighed held, “This honorable also tending against ap- to connect case at that the trial court erred in not the marihuana. issue is giving requested circumstantial evidence whether there is sufficient evidence link- knowing possession. The State’s ing to the marihuana to only research has revealed when the support the reasonable reference that he possession fact of must be shown circum- knowingly of marihua- stantially charge required. is such all *8 na.” events, affirmatively charged the jury was find, beyond it must a reasonable Court noted that marihuana on doubt, possession Appellant’s was in- dash, credulity suggest it strained knowing. tentional and (appellant) the driver could not see it —in fact that spite of the there was proved by no “When the main fact is direct showing was familiar with testimony, as it was the case recognize sight. only question marihuana so as to it on defendant’s intent is circumstances, to be inferred is not
charge on circumstantial evidence
required. Littleton den. 389 (Tex.Crim.App.1967); cert. 115, 19 L.Ed.2d S.Ct.
U.S. 389 U.S. 88 S.Ct.
(1967); reh. den. Knowledge no (1967).
19 L.Ed.2d subjective state of mind nor less
more intent, if evi- no circumstantial
than one, charge required as to it is
dence requiring to see the basis for it as
difficult it especially
to the other. This true when charged
is remembered
that, convict, it must believe before could knowing. always
Must a now be
given?
“WHEREFORE, considered, premises Rehearing prays that Motion for granted judgment and the in the above
styled and numbered cause affirmed.” granted
The motion should be and the
conviction should be affirmed. GARDNER,
Randy Appellant, Lee Texas, Appellee. STATE of
No. 52764. Appeals of Texas. Criminal 6, 1976.
Oct.