Belmarez v. State
509 S.W.2d 635
Tex. Crim. App.
1974
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*1 035 OPINION BELMAREZ, Appellant, Navarro Fidel McCLOUD, Commissioner. v. Texas, Appellee. The STATE of for appeal a This is an from conviction No. 48058. jury The possession unlawful of heroin. court, after guilty and the appellant found Appeals Texas. of Criminal of Court previously con- finding appellant had been May 22, 1974. offense, his the same assessed victed of punishment at in the Texas confinement twenty-five Department of Corrections for years. erred,

Appellant contends the over court charge, objection exception his and to the charge in submit failing to a on circum- agree. stantial evidence. We The record reflects that an automobile appellant, by containing driven two and passengers, stopped by other was officers because a traffic was of violation. Heroin the front found under seat on the driver’s testimony side of the vehicle. There is no actually appellant possessed that her- the showing oin. was no auto- There that the by appellant, mobile was owned the and clearly did appellant record reflects that sole not have access to the automobile where the heroin was found. signifi- When confronted with facts not distinguishable cantly from those reflected by case, in the the record instant court this State, in Crawford v. 502 768 S.W.2d recently (Tex.Cr.App.1973) held that the trial committed by court reversible error not charging on law the of circumstantial Judge Onion, speaking evidence. for while court, a majority of the said: “ Nevertheless, . . . is- the critical disposition sue in the this is the of case pos- of prove absence direct evidence to by session the appellant. of heroin the prove possession To the must show State Browne, Houston, appellant. fo'r J. John care, appellant that had custody, control Vance, Phyllis Atty., management Carol S. Bell possessed Dist. and the thing of Bodiford, Attys., and jointly Asst. Dist. or either alone with others. Gar Jack Houston, Vollers, State, Atty., D. State’s za v. 468 (Tex.Cr. S.W.2d 440 Jim Austin, for the App.1971). State. *2 636 ODOM,

“This J., court has for some time held concurs in the result. that the distinction between circumstan- tial evidence and direct evidence is that DOUGLAS, Judge (dissenting). applies directly

the latter to the ultimate proved, fact to be while circumstantial ap- in this the The facts case show that is evidence the a proof direct of minor pellant driving was arrested for his car on which, inference, by logical fact demon- wrong the of road. An side the officer strates the proved. fact to be Beason v. patrol he his car to testified swerved that State, 442, 43 Tex.Cr.R. 67 96 S.W. the a shoulder of the to avoid head- road ; (1902) State, Brown v. 126 Tex.Cr.R. appellant on collision with the car was 449, (1934); 72 269 S.W.2d Ramos v. and, “Well, passing he driving was when State, (Tex.Cr.App. 478 S.W.2d 102 complete, complete us a it was a but —not (on 1972) Motion Rehear- State’s for way he the as if to leaned over in seat case, ing). In the instant no witness push place something something back or to appellant actually possess saw the heroin. appellant’s After car down there.” was Moreover, the residence where the her- in stopped, looked the door and officers ap- oin belong was discovered did not to mollies, capsules as recognized black two pellant; question thus no of sole access Instead, lying amphetamines, the name common for is raised. the was found heroin at plain person the residence of another in on the in view. floorboard appellant present which was the time at mollies and a officers took the black The Therefore, of the search. the ultimate them. The brown appellant package beside possessed of brown fact whether the proved by heroin found was not direct and other black mollies package contained evidence. In the absence of direct evi- powder later cellophane package white a of dence, grant requested the refusal a to be heroin. to ascertained charge on is re- circumstantial evidence State, versible error. Farris v. 496 S. of the appellant the driver Here the was (Tex.Cr.App.1973).” 55W.2d on the was found car. The contraband he the front seat where near floorboard State, Denny See also: v. 473 S.W.2d 503 place if some- had a as to made movement State, (Tex.Cr.App.1971); Scelles v. 358 down. thing ; Arsiaga S.W.2d 623 (Tex.Cr.App.1962) v. State, 372 538 (Tex.Cr.App.1963); S.W.2d closely was so connected The evidence State, Ramos (Tex.Cr. v. 478 102 S.W.2d charge appellant no on cir- with the that State, App.1972); McBride S.W.2d v. 486 required. evidence was See cumstantial 318 (Tex.Cr.App.1972). State, Tex.Cr.App., 474 v. S.W. Oltiveros by urging The cases the the cited State opinion in 221, dissenting Ra 2d and the jux- applicability of “close of the doctrine State, 102. Tex.Cr.App., mos 478 S.W.2d v. taposition” distinguishable. are charge Even if such a on circumstantial We conclude the court committed revers- given, such fail evidence should have been failing charge ible in to a error submit on to ure have been such as affect would not circumstantial In of our evidence. view 36.19, Article the result of the trial. See disposition, necessary it is not consider to Vernon’s Ann.C.C.P. appellant’s other contentions. judgment should The be affirmed. judgment

The is reversed and cause the remanded.

Opinion MORRISON, joins approved by in this J., the Court. dissent.