Doyle v. State
779 S.W.2d 492
Tex. App.
1989
Check Treatment

*2 Shop at Doyle were at the Ellis Radiator MIRABAL, Before SAM BASS and of and that he had 1000 block Charles COHEN, JJ. possession of seen them in mari- they had that marijuana and OPINION their and he juana the trunk of description vehicle gave me a also MIRABAL, Justice. driving. they It’s a were appellants guilty The trial court found plate of the car. gave and me the license marihuana, quantity in a Q. give you Did he other informa- pounds, more than ounces and less than 5 tion? punishment and assessed at people A. He advised me that would confinement, years probated, and a fine six They long. at that location would $500, Tony Doyle’s punishment and shortly. leaving be ap- years parties four confinement. Both peal. clarity, appellant Q. give you each some- an idea of what For will Did he shortly times referred to first name. in terms of time? be meant A. an hour. asserts, Within points Each in two error, (1) deny- the trial court erred Q. give you his name? And did ing suppress the motion to the fruits of a give only. He me a first name A. seizure, warrantless search pos- insufficient to evidence is establish charged. of marihuana as

session Prosecutor) Q. Did that (By you, expressing the con- called besides evidentiary The trial court conducted an people going were to be cern that the sup- hearing respective on the motions to shop shortly, give leaving the radiator the close of the press. At they when you any other indication of trial court denied the motions. Immediate- leaving they might be or where ly following hearing, appellants each jury, stipu- going? pled guilty, waived a Yes, pound of mari- approximately

A. ma’am. advised found one Informant leaving marijuana were bag wrapped huana in a in a brown blan- go place marijuana. some dispute sell the Appellants do not ket. *3 trunk marihua- substance found the was Massey Officer obtain an arrest na. warrant or a search warrant. He arrived Company at the Ellis Radiator an un- Appellants contend in their first each police marked car and a saw Nissan point of error that the trial court erred car, with plate license numbers denying appellants’ suppress motion to the described, matched the ones the informant search and sei- fruits of warrantless parked out front. He conducted surveil- Appellants argue zure. that Officer Mas- p.m., lance of the car until 5:00 sey ample time to secure search and premises when a man and a woman left the warrants, justified arrest so he was not drove, in the car. The and the man woman making the warrantless search and arrests. passenger’s sat the front seat. Officer Appellants argue anony- further that an Massey minutes, followed the car for 15 phone justify mous call does not a warrant- miles, over a distance of three after which less search and arrest. patrol stopped he and a uniformed unit anonymous phone call in the spoke car. The uniformed officer not, alone, provide probable case did cause driver, Sally Doyle, woman who was for issuance of an arrest warrant or a step asked her to out of the car. Officer However, search warrant. an Massey testified: phone provide justifica- call sufficient will Prosecutor): Q. (By you stopped When police tion for officers to initiate an investi- defendants, each them how were gation. Clemons v. acting, Sally Doyle. you let’s take When (Tex.Crim.App.1980). Circumstances step asked her to out of the car and probable may cause for an arrest short her, questioned you do remember notic- justify temporary purpose for the detention ing anything about her behavior? investigation, investigation since an very A. She was nervous. upon considered to be a lesser intrusion Q. you you Could describe what mean personal security of the individual. Liv- by that? ingston v. Well, bit, stuttering A. she was a little — denied, U.S. -, Crim.App.1987),cert. just very seemed nervous at the time. (1988); 108 S.Ct. 101 L.Ed.2d 895 Q. anything you? Did that indicate to Leighton v. appeared something A. It to me she had (Tex.Crim.App.1976). In Adams to hide. Williams, 145-46, 92 S.Ct. U.S. 1922-23, Massey Sally 1921, (1972), Officer then informed 32 L.Ed.2d 612 Doyle Department Supreme that the Houston Police Court reasoned: had information that she had marihuana in require The Fourth Amendment does not responded the car. She that she had some precise policeman a who lacks the level bag marihuana roaches on front probable necessary of information floorboard of her ear. simply shrug to his shoul- cause to arrest occur ders and allow a crime to Massey Officer then asked contrary, escape. criminal to On the Ter- step passenger’s outside from the side of recognizes may ry that it be the essence car, after re- which Officer good police adopt an interme- work bag ciga- moved the of used marihuana Ohio, response. Terry v. diate See passenger rettes from under the seat. At 1868, 1881, time, U.S. S.Ct. appellants. he arrested Officer [88 (1968). stop A L.Ed.2d brief Sally Doyle Massey asked whether there 889] individual, in suspicious order to deter- any other marihuana was reply. identity mine his or to maintain the sta- which she made no keys igni- quo momentarily obtaining the car from the tus then removed while information, opened the trunk of the car. He more most reason- tion the car floorboard of front bag on the light of the facts known able that an offense cause provided probable time. officer pres- in the officer’s being committed permitted make a An officer is ence, the seizure of justified which investigative a de temporary detention of indicated, of Sal- and the arrest marihuana if a reasonable sus fendant the officer has Lunde Tony Doyle. ly and ordi picion activity that some out of the (Tex.Crim.App. 665, 666-68 to, occurred, some nary is about or has Delgado v. 1987); suggestion to connect the detainee with 720-21 activity, and some indication that unusual *4 in the marihuana found light In v. Stone to crime. activity the is related a tip that informant’s coupled with the State, 652, (Tex.Crim.App. 703 S.W.2d 654 trunk, we be found marihuana would State, Johnson v. 1986). In 658 S.W.2d probable cause to officers had hold that the 623, (Tex.Crim.App.1983), the Court of in more marihuana there would be believe that, jus Appeals held order to Criminal and therefore were authorized the intrusion, police a officer tify such an of the trunk. a search conduct warrantless which, specific facts “must have articulable Ross, 456 U.S. 798, 809, v. United States light experience personal of his (1982); 2157, 2164, 72 L.Ed.2d 572 102 S.Ct. knowledge, together inferences with other State, 107, v. Osban 726 S.W.2d facts, reasonably from those war State, Crim.App.1986); Delgado v. the rant the intrusion on the freedom of S.W.2d at 723-24. investigation.” for further citizen detained point first of error is over- Appellants’ just occupant An of an automobile ruled. pedestri is a subject to a brief detention as error, State, 587, appellants Lopez v. point of an. 663 S.W.2d In their second 1983, contend that the evidence is insufficient [1st Dist.] — Houston possessed the ref’d). establish argue Appellants pound of marihuana. case, possess In this the officer proved appel- is that that all the State has temporary specific justify facts to deten occupied a car that had a lants appellants. tion of He had information reply In to this marihuana in the trunk. drug from an informant that a transaction the state- the contends point, State place, take and he had corrob was about to anonymous informant are evi- ments of the orated, observation, by personal the follow mari- appellants possessed the dence that ing information received from the infor trunk. huana the by mant: the location described the infor charged an accused is Where Ellis Radia mant was indeed the address of of a controlled sub unlawful Shop; parked out tor stance, prove must two elements: the State shop; the side the radiator license number care, control, (1) accused exercised that the giv the car matched the license number contraband, and management informant; female by en a male and a the matter was that the accused knew shop and left in the car a came out of the State, v. contraband. Martin 753 S.W.2d hour after the call from little more than an (Tex.Crim.App.1988); Nunn v. 384, the informant. (Tex.Crim.App. 640 S.W.2d only facts that had not point, At that 1982). need Possession of the contraband the man were the identities of been verified exclusive, that shows and evidence Doyle, and Tony and woman as contra- jointly possessed the the accused in the trunk of presence of marihuana Martin, is sufficient. with another band driving. hold that they were We the car v. 387; Rodriguez 753 S.W.2d at justified stopping officers were (Tex.Crim.App.1982). investigation. car for further the evi- reviewing sufficiency of upon support a conviction based subsequent admission dence Sally Doyle’s evidence is viewed in a direct marihuana roaches that she had some light judgment. most favorable to — Houston d). pet. ref Flournoy v. 383 [1st Dist.] inquiry The critical no there was evi- In the whether, viewing after the evidence the vehicle indicating who owned dence light judgment, most favorable to except for the anon- Sally Doyle, driven any found rational trier of fact could have to Officer ymous informant’s statement beyond the crime the essential elements of marijuana appellants had the Massey that Virginia, reasonable doubt. Jackson no car.” There was in the trunk of “their 307, 319, 2781, 2789, 61 443 U.S. 99 S.Ct. indicating that either defendant Sharp (1979); see also L.Ed.2d 560 prior to access to the vehicle had had sole (Tex.Crim.App. the surveillance the start of — denied, 1986), U.S. -, cert. 109 S.Ct. Massey. There was no evidence (1988). 102 L.Ed.2d 159 The standard personal belongings were of defendants’ is the same for both direct and review (which could indicate the trunk Sutherlin circumstantial evidence. trunk and therefore would looked (Tex.Crim. 548-549 *5 contents). likely The fact be aware of its App.1984). Where circumstantial evidence Sally Doyle nervous and admitted that was involved, must exclude the circumstances under knowing that some “roaches” were except every hypothesis other reasonable seat, passenger’s although indi- the front of the defendant. Moore guilt that of the cating familiar with marihuana she was State, 300, (Tex.Crim. v. it, not, standing identify and could App.1982). only that to a Proof amounts alone, knowledge of the show that she had probability in- strong suspicion or mere Baty v. in the trunk. contraband Id. support a conviction. sufficient State, — Dallas ref’d). only direct evidence in exclusive When the accused is not appellants to the ly linking either of these possession place of the where the con pound of marihuana the trunk was found, it trolled substance is cannot be testimony Massey relating the of Officer knowledge that the accused had concluded from the anon information he had received and control the contraband unless ymous, confidential informant. independent facts and circum additional hear- The informant’s statements were affirmatively link the accused to stances with- say admitted into evidence but were v. Deshong the contraband. The court in objection by appellants. out (Tex.Crim.App.1981); S.W.2d State, Chambers Hughes v. abandoned the rule (Tex.Crim.App.1986), Crim.App.1981). Affirmative links criminal cases that de- followed Texas and circumstances that established facts hear- any probative value to admitted nied knowledge of and indicate the accused’s sufficiency of say determining contraband, including the control over the claims, stating: in- fact that the accused owns vehicle this The time has come for Court owner; volved, or is connected with un- acknowledge the lack of rational de- clearly that emitted a contraband special treatment of derpinning for the odor; accused made fur- tectable that sufficiency of the evidence hearsay in contraband; gestures that tive toward Therefore, ... we will follow cases. nervously; the ac- acted the accused by Tex.R. majority rule now embraced drugs the influence of or cused was under hearsay 802 and treat inadmissible Evid. possession paraphernalia; narcotic objection the same as admitted without proximity in close that the contraband was sufficiency con- other evidence all accused; in- the accused made text, i.e., capable sustaining it is at the time of the criminating statements verdict. arrest; attempted the accused to es- states, “Inadmissible Tex.R.Crim.Evid. 802 See Meeks cape. objection shall (Tex.Crim.App.1985); Brazier v. hearsay admitted without Justice, dissenting. COHEN, probative merely denied be- value hearsay.” The court cause it is Chambers illegal, search was agree that the I adopted the rationale that the reasons States, 358 U.S. Draper v. see United its hearsay are based on exclusion (1959), and that L.Ed.2d 327 S.Ct. reliability, probative questionable not on its car, joined with Sally Doyle’s control value. 711 S.W.2d. at 246. pos- admission, knowingly proves she her passenger in the testified, marihuana found objec- sessed without than the four was less compartment, which tion, that the informant stated that he had Unlike alleged in the indictment. ounces possession of a seen Baty the court in majority marihuana, appellants had that mari- 1987, pet. 734 S.W.2d 62 trunk of their huana — Dallas Doyle’s con ref’d), hold that planning All of the evi- were to sell it. admitted trol of the car and hearing presented suppression at the dence compartment passenger marihuana admitted, trial. by stipulation, at the was a rational an inference which raises If the informant had testified Sally Doyle also jury could conclude that saying exactly what Officer marihuana in the knowingly possessed the informant, told such said weighed more than four ounc which testimony sufficient direct would have been short, it more these facts make es. support problem in the conviction. The likely possess marihua that she would also appellants had no this case is that Thus, in the car. I would na elsewhere opportunity question the informant supports Sally *6 hold the evidence him, anything learn about either before conviction, considering the without even during anonymous. because unobjected hearsay statements of the Massey only name. knew his first anonymous informant. a defendant Can be convicted case, however, different. Tony Doyle’s necessary possession of contraband when states, majority Tony Doyle did not As the showing had con evidence the defendant anything, does the car or admit nor control knowledge trol and of the contraband evidence, hearsay, any except anonymous from statements of an comes out-of-court four ounces of link him to the more than anonymous tipster, part by corroborated The marihuana in the trunk. subsequent hearsay events? The state guilt, hearsay only evidence of his is the ments were offered and admitted for sufficient, Tony Doyle’s if is not and purpose proving of the matters the truth conviction must be reversed. stated; being objection their there no unobjeeted have held that Several courts admissibility, they are to be treated the alone, hearsay standing cannot as all in the sufficien same other evidence the declarant support a conviction when context, i.e., cy capable are of sustain hearsay in court unequivocally recants ing 711 a verdict. Chambers v. State, 769 S.W.2d Forrest v. under oath. at 247. S.W.2d (Tex.App. 1989 [1st Dist.] — Houston that, viewing We hold the evidence State, 755. pet. granted); Chambers v. judgment, a light most favorable to the (Tex.App. S.W.2d [1st Dist.] —Houston found, of fact could have be- rational trier pet. granted). Fernandez doubt, (1)appellants yond a reasonable (Tex.App. S.W.2d [1st — Houston care, control, management exercised granted); Machado Dist] contraband, — Houston Appel- the matter was contraband. knew curiam, 1988), per pet. ref'd, [1st Dist.] error two is overruled. point lants’ (Tex.Crim.App.1989); Vil are affirmed. judgments (Tex.App.— State, 739 S.W.2d 450 lalon In this pet. granted).

Corpus Christi course, anonymous declarant COHEN, J., dissents and files hearsay declaration his did not recant opinion. testify, court under oath. He did not and mason v. S.W.2d 1985), subpoenaed, could not have been aff'd, because —Houston [1st Dist.] everyone. Despite he was unknown to this S.W.2d 363 difference, the case Machado is instructive. I do not believe that either Chambers v. Machado, testified, (Tex.Crim.App.1986), Sofos without 711 S.W.2d 240 hearsay objection, men, that two Williams or Texas Rule of Criminal Evidence 802 “Candy,” him told Machado set a fire. hearsay admitted means that testified, however, Williams that he did not automatically objection without has see the fire start and did not know when probative necessary support a con- value Machado left the scene of the fire. stated, viction. As the court all Villalon stated, “Unobjected hearsay This Court nonhearsay evidence Chambers was may probative be denied value for reasons Villalon, guilt. consistent with nature,” hearsay other than its and con Here, S.W.2d at 454. there is no nonhear- testimony cluded that Sofos’s about say testimony Tony Doyle’s guilt. The probative Williams’s statement had no val Tony Doyle’s guilt sole evidence of is indis- testimony ue because Williams’s own tinguishable Candy’s accusation that showed that Williams “could not have was held insufficient in Machado. As (Ma personal knowledge known from Humason, it more like- no evidence makes chado) Machado, started the fire.” 753 ly than not that knew of the at 254. marihuana in the much less know- Humason, ingly possessed it. facts, pertinent

More to our Consequently, would reverse the Machado court also found insufficient So- judgment judgment acquit- and render a fos’s hearsay testimony further that “Can- Tony Doyle. tal in the case of dy” said Machado started the fire. Like here, “Candy” informant was known only by his testify. first name and did not

Unimpressed, this Court wrote:

Although this evidence tend to

prove who fire, “probative”

started the and so has

value, we are unable to conclude that a rational trier of fact could have found GARNER, Kyle Dwayne Appellant, this even combined with appellant’s opportunity fire, start the was sufficient to exclude Texas, STATE of State. every hypothesis except other reasonable No. 2-87-079-CR. guilt appellant. Texas, Appeals Court Id. at 254. Fort Worth. recognize that in this unlike in Machado, witness, Massey, per- Oct. sonally several facts stated corroborated informant, including Tony his unknown name, location, Doyle’s his his imminent color, make,

departure, and the and license

number of the car he would travel in. facts, however, do not

These corroborated prove

tend to controlled or that he did

the marihuana knowingly. They give

so rise to no infer- does, guilt, example, Sally

ence of knowing possession of marihuana passenger compartment. Hu-