741 S.W.2d 466 | Tex. App. | 1987
Appellant Hollis Ellis was convicted by a jury of possession of an alcoholic beverage in a dry area with intent to sell.
The facts are these. Ellis on the 16th day of August, 1985 (the date of the offense), was the owner of land located in the city of Crockett, Houston County, a dry area. Two buildings were situated on the property, the first a convenience store known as the Bargain Center, hereafter referred to as store, and the other was a residence-type building located about twenty feet from the store. The address of the store was 211 West Bell. The address of the other building was 209 West Bell. On August 16, 1985, two enforcement agents of the Alcohol and Beverage Commission, Jerry K. Phillips and David Ball, began surveillance of the premises located at 209 and 211 West Bell. Their testimony reveals that an unidentified white male was observed sitting in front of the store when several persons drove up in an automobile, stopped and engaged in a brief conversation with the male. Almost immediately the white male went to the building located at 209 W. Bell and returned with a 12-pack of Budweiser beer. He gave it to the per
and malt liquor were stored in these appliances.
Ellis contends under his first point that the evidence is insufficient to support his conviction, arguing specifically that the State failed to establish his possession of the alcoholic beverages seized. Under his second point he claims that the State failed to disprove the reasonable hypothesis that the unknown white male was in possession of the alcoholic beverages. He correctly states that there is no testimony that he ever entered the premises at 209 W. Bell on the date of the offense. Furthermore, he contends that the State failed to present any evidence identifying the white male who the officer observed entering the premises at 209 W. Bell. Under our view of the record, there is no direct evidence that this white male was an employee of Ellis, but Phillips did testify that he had seen the man at the store on “other occasions.” Ellis elected to testify in the case, but he was never asked during cross-examination in the guilt/innocenee phase the names of white males employed by him on the date of the offense, and particularly at the time of the surveillance made by the officers. Thus, the State’s case against Ellis rests on the undisputed proof that Ellis owned the building; that large quantities of alcoholic beverages were stored in the refrigerators or freezers located in the building; that agent Ball purchased alcoholic beverages at the store from an employee of Ellis in 1983 or 1984; and that the unidentified white male sold beer which he secured from the premises at 209 W. Bell. The record reveals that neither of the testifying officers ever approached or questioned the white male, nor did they continue to observe him immediately following the delivery of the beer to the also unidentified purchasers thereof.
The Penal Code
A reviewing court in judging whether the evidence is sufficient to support a conviction must view all of the evidence in the light most favorable to the verdict, Houston v. State, 663 S.W.2d 455, 456 (Tex.Cr.App.1984), and then determine “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. Where the State relies on circumstantial evidence, as it does here, for the conviction, the conviction cannot stand “[i]f the State’s evidence supports ... [a reasonable] inference other than a finding of the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt — and this is true irrespective of the character of the evidence.” (Emphasis ours.) Wilson v. State, 654 S.W.2d 465, 472 (Tex.Cr.App.1983).
In this case, the State’s evidence shows that Ellis was, on August 16, 1985, the owner of the land and building where the alcoholic beverages were seized. It also demonstrates that the unidentified white male had access to that building, and on the occasion in question, removed a carton of beer therefrom and delivered it to unidentified persons. The State’s evidence also establishes that the officers gained entry into the building by force because no key to the lock securing the door was available to them. These facts standing alone might well establish an outstanding reasonable hypothesis that the unidentified white male had the exclusive care, control and management of the alcoholic beverages; however, the State’s case did not stop there. Its evidence also showed the unidentified male was seated in front of Ellis’ store when the potential customers arrived, that these parties conversed in that area, whereupon the unidentified white male then went to the building located but twenty feet from the store and brought out the beer. Given these facts, as well as the testimony of Phillips in rebuttal, that grocery sacks, cartons and boxes commonly found in grocery stores were also stored in the building, we conclude that no reasonable inference arose from this evidence that the unidentified white male was in exclusive possession of the beverages found and seized by the officers. Therefore, we conclude that the evidence produced by the State and the inferences arising therefrom prove beyond a reasonable doubt that Ellis, the undisputed owner of the building, had at least joint possession, that is, care, control and management of the alcoholic beverages at the time of the offense on August 16,1985, and that rational jurors could have so found. Points one and two are overruled.
The judgment is affirmed.
. Under Tex.Alco.Bev.Code Ann. § 101.31 (Vernon 1978). All references in this opinion to sections are to the Texas Alcoholic Beverage Code unless otherwise indicated.
. Pursuant to section 1.05.
. The vehicle was stopped later and the beer was confiscated by law officers.
. Sizable quantities of malt liquor, whisky, gin, and vodka was introduced into evidence and identified as a part of the beverages seized by the officers on August 16, 1985. Ellis did not deny that these beverages were seized from the building at 209 W. Bell.
. Jones’ whereabouts at the time of Ellis’ arrest and at the time of trial was unknown.
. Tex.Penal Code Ann. § 1.07(28) (Vernon 1974), hereafter referred to as Penal Code.
. Alston, 226 S.W.2d at 444.
. Huggins v. State, 146 Tex.Crim.R. 606, 177 S.W.2d 269, 270 (1944).
. § 101.32. Prima Facie Evidence of Intent to Sell
(a) Possession of more than one quart of liquor in a dry area is prima facie evidence that it is possessed with intent to sell.
(b) Possession in a dry area of more than 24 twelve-ounce bottles of beer, or an equivalent amount, is prima facie evidence of possession with intent to sell.