*1 you must you then are instructed that punishment
now assess the of the de- HUMASON, Appellant, Paul Allan in the Texas De- fendant at confinement partment of for not less than Corrections Texas, Appellee. STATE years ninety-nine fifteen nor more than years or life. No. 01-84-0783-CR. art. 37.- Tex.Code Crim.P.Ann. Texas, Court of 07(l)(a) (Vernon 1981) provides that (1st Dist.). Houston every gen
verdict in criminal case must be right A eral. defendant does not have the 7, 1985. Nov. special jury to a have issues submitted a criminal Stewart (Tex.Crim.App.1984), and a
charge similar that submitted in the
present approved Wright case was (Tex.Crim.App.1978). trial
Finally, we hold that excluding did not the written err appellant’s allegedly prepared
motions by Walter Ballard. The statements
behalf dec qualify to Ballard do not as
attributed interest, penal
larations because against he com clearly
Ballard does not admit that
mitted the crime for which
being tried. See Munoz Also, to
S.W.2d 500 against admissible under the declaration rationale,
penal must interest the State solely on circumstantial evi
have relied
dence. Ramirez v.
632-33 Ballew 636, 141 139 Tex.Crim.
(1940). complainant posi In this
tively identified as one of the two
persons kidnapped sexually as who guilt was Finally,
saulted her. Ballard’s guilt for appellant’s
not inconsistent with Perez v.
the same offense. See (Tex.Crim.App.1979). We ground fifth of error.
overrule judgment trial court is af-
firmed. *2 Houston, Turner, for appel-
Robert G. of over cise dominion and control the thing allegedly possessed.” lant. ... Wheth- theory the is er case tried Holmes, Jr., Dist. Harris Co. John B. possession, joint or sole the evidence Cochran, Atty., E. Harris Co. Winston Jr. link affirmatively must the accused to Morris, Atty., Ned Harris Co. Dist. Asst. drug alleged possessed. he is Houston, Atty., appellee. for Dist. Asst. (citation omitted) (emphasis supplied) Id. EVANS, C.J., Before and COHEN and (quoting Brown v. 481 P.2d
LEVY, JJ. (Okla.Crim.App.1971). OPINION Affirmative links may proved by evidence; however, proof COHEN, Justice. amounting a strong to suspicion or a even Appellant intentionally was indicted for probability will not suffice. Waldon cocaine, knowingly possessing and a con- State, 501-02 trolled substance under Tex.Rev.Civ.Stat. App.1979). 4476-15, Ann. 2.04(b)(4) (Vernon art. sec. case, In
Supp.1985).
the instant
pleaded
guilty
He
not
not
and
did
was
testify,
proved
convicted in a
and the
non-jury
only
State
he
trial.
court
punishment
occupant
assessed
was the truck’s
years
his
at three
im-
sole
and that the
prisonment, probated, and a
fine. He
was found near him. The
$500
contends that the
appeal
evidence was
brief on
concerning
insufficient
cites no cases
knowing-
to
that he intentionally
sufficiency
and
evidence. We conclude
possessed
ly
cocaine.
that these facts
affirmatively
do not
cocaine in a
prov
manner
27, 1984,
On March
at
p.m.,
9:30
Nassau
ing that
he knowingly
it. Reyes
Bay police
stopped
officers
a
for
truck
unlawful
at
he exer
stance,
prove that
the State must
control,
care,
management over
rejected
cised
Reyes
the State’s con-
substance,
he knew that what
and that
proximity
tention that
defendant’s
Payne
possessed was contraband.
contraband,
standing alone,
established
(Tex.Crim.App.
where,
link,
an affirmative
as in the instant
1972).
ownership,
there
being
than
gestures
means more
“Possession
evidence of furtive
toward the
is;
contraband,
it
the exer-
attempt
escape,
the action
involves
where
no evi-
in the
No fin
person
influ-
or elsewhere
truck.
dence
the accused
under the
gym bag
incriminating
gerprints linked him to
or
drugs,
ence of
and no
state-
factors,
present,
when
have
These
ments were
at the
arrest.
vial.
made
time
Reyes
link,
ing
long
possessed
the defendant
occupant,
one
do not
than
we
believe
it.
car or whether he had sole access to
requires
that fact alone
different result
in
The cocaine was as near
accused as
particular
Compare
these
facts.
the instant
and
stated:
under
the court
State,
Harris v.
It is true
the area of
automobile
(defendant
occupant,
App.1972)
was sole
i.e.,
in
which the substance was
his
car other than at
but was linked to the
dashboard,
appel-
was
to
convenient
State,
arrest); McGaskey
of
451
moment
readily
lant and
it
accessible to
rendered
(sole
(Tex.Crim.App.1970)
link,
486
con
him.
how- S.W.2d
This one
ever,
arrested,
in
parked
plus
is
trol of
car when
not sufficient.
toxication,
to
sufficient
link defendant
(citations omitted).
phernalia presented truck’s and weak. Waldon v. 1. The State no evidence of the was circumstantial ownership registration, though recently such evi- or even at This rule has been is its control. The dence within exclusive questioned, Buxton v. however. available, produce probative 1985) (not failure (Tex.Crim.App., yet re- so, evidence or account for its failure to do ported). has led to reversal where the State’s evidence prove appellant knew he trial entitled conclude that the illegal drug. an knowledge existence illegal drug. Deshong, See majority opinion distinguish fails to proof S.W.2d at 329. The the facts in from those this case situations itself, possession, exclusive established where an was not shown accused link necessary between the been in exclusive contraband, and the State was not where recog the substance found. I required any to show of the “additional nize that in the absence of exclu majority opinion. links” listed in the possession, sive the State must “ad independent ditional facts and circumstanc majority opinion cites three cases in es” that the accused to support of its conclusion that the State’s Deshong contraband. See 625 proof *4 appellant failed to 327, (Tex.Crim.App.1981); S.W.2d Wi 329 to the in manner proving a that he State, 188, (Tex. ersing v. 571 190 S.W.2d knowingly possessed State, it. Reyes v. Crim.App.1978). 575 (Tex.Crim.App.1979); S.W.2d 38 Press present case, State, (Tex.Crim. In the the State did wood v. appellant possession App.1977); State, that the exclusive had Baltazar 638 S.W.2d place where the controlled 1982, substance 130 (Tex.App. Corpus Christi no — proved was found. The such pet.). State “exclu I do not believe those cases are possession” showing sive by appel that the applicable all three because involved non lant occupant was the sole and driver of possession exclusive of the contraband. vehicle, the bag containing the illegal drug In the was found illegal drug was located inside the vehicle wrapped bag glove in the a bank com- on the seat next him. See Duncan v. partment occupied by of an automobile the
State, 555, 680 (Tex.App —Ty S.W.2d 560 . passenger. defendant and his There was 1984, pet.). ler Although there was no evidence, circumstantial, direct or link- direct evidence that the exercised ing drug, the except the defendant to that bag contents, control over the or its the he the was the driver of vehicle. pos of his exclusive Reyes, passenger In the defendant was a session of the and its vehicle contents was carrying a four-wheel-drive vehicle bulk sufficient to raise a fact issue for the trier marijuana in the rear section. Because of fact. McGaskey See 451 passen- between partition there was no the 486, ger compartment rear of the ve- bag The containing the cocaine was con hicle, the State contended that the close veniently placed the appellant next to in the to the proximity of the accused contraband vehicle, front making seat of the its con joint posses- was sufficient to establish his tents readily to him. accessible The trial sion. entitled, court was a matter as of common Baltazar, In the accused his female experience, persons that operat consider passenger stopped investigation. were for ing place motor vehicles person often their placed After the accused was under arrest al effects on the seat next to them while possession paraphernalia, gambling for driving. Indeed, would that have been the police impounded vehicle and subse- logical place most for the quently envelope in an in a found cocaine placed bag, if ready desired only kleenex box on the dashboard. access to its contents. See Orosco v. tending the defendant evidence to link 257, (1957);
164 Tex.Crim. the cocaine was the fact that it was found 147, Boughton 643 S.W.2d vehicle, place a on the dashboard of (Tex.App. Worth — Fort readily accused. accessible to the proof showing appel- Based on the by majority cited lant’s In the three cases possession exclusive occupant, the convic- single where the that illegal involved State, 486 affirmed. Harris v. tions were (Tex.Crim.App.1972); MOALLEN, Maryam Appellant, McGas key v.
App.1970); Nickerson Texas, Appellee. STATE (Tex.App.—Dallas), 'd, aff No. 01-83-0004-CR. S.W.2d 825 see also 147. I rec Boughton v. Texas, Court of court, ognize affirming the con (1st Dist.). Houston Nickerson, viction in discussed additional Nov. to- circumstances linked defendant did not the contraband. But
state evidence exclusive not, alone, standing
could a sufficient sustaining
basis for the conviction. Harris, argued, ap- as defendant here, the evidence does be- support his conviction
insufficient (a) showing testimony
cause there automobile, (b)
that he owned *5 had in the fold of
narcotics been found «He open view.
front seat were not pointed testimony
also to defense
owned a different make of car than in which the narcotics were
automobile Rejecting defendant’s conten-
found.
tions, the Court Criminal support
that the evidence was sufficient to conviction, facts concluding
relating occupancy defendant’s negated possibility that vehicle placed
someone else contraband at 91.
the car. Harris opinion, estab- my pos-
lished had exclusive where the controlled
session of consti- this tri- support
tuted sufficient evidence
al court’s determination illegal drug.
knowingly judgment.
I would affirm the trial court’s