Marable v. State
802 S.W.2d 3
Tex. App.
1991
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*1 solely short-barrel firearm as an antique MARABLE, or curio Appellant, ... Marcus James

[*] [*] [*] [*] [*] [*] findWe there is no conflict between Texas, Appellee. The of STATE provisions. No. 6-90-007-CR. The first one furnishes a defendant with Texas, weapon the chance to itself show of of Appeals and, antique therefore, is an cannot be Texarkana. Thus, a firearm. characterized as he can- Nov. 1990. validly charged possession not be with of a Rehearing Dec. Overruled 1990. gun is

firearm since the not a firearm. Appellant opportunity sup- had this at the Discretionary Review Refused pression hearing and also at trial on April 1991. A the testimony ap- merits. review of pellant’s gun experts at the State’s say

trial shows neither could when though gun alteration occurred even possibly was manufactured before 1899.

The permits affirmative defense statute a defendant show that at the time he arrested, his conduct was incidental to

dealing illegal weapon otherwise antique as an or curio. The burden is on a a preponderance defendant show of the evidence. TEX.PENAL See CODE (Vernon ANN. 2.04 § statutes, definition, The two one a defense, the other an dif- affirmative serve purposes, ferent both beneficial to a instances, defendant. In most the affirma- apply tive defense to a will limited few. Under the circumstances of the arrest ease, present appellant have

great difficulty to show gun deal- short-barrel incidental to antique. it as had ing with an But he still demonstrating gun avenue definition, antique, according to was an agree and not a firearm. We with the trial did not meet his bur- appellant court gun was not a firearm. den to show the agree we that a firearm manufac- Further antique is not an under tured before 1899 statute, if it has been the terms point The after 1899. second altered overruled. is affirmed.

huana located about from the 800 feet residence, approximately twenty Marables’ a A feet behind barn. three-wheeled ve- parked hicle was beside the Marables’ mo- home, and a bile witnesses well- described house, barn, from the the worn trail around patch. to the' marihuana The officers’ 1,500 2,000 search revealed starter to used pots near the barn. the barn Also near sprinkler system was a homemade that had painted camouflage The colors. largest of the two patches

clearly visible from the barn. pivotal The we must White, Pleasant, issue which

Jimmy appel- Mount for prosecutor’s jury first concerns the address lant. argument. argu the Marable asserts that Long, Atty., Sulphur Frank Dist. improper ment constitutes an on comment Springs, appellee. testify. the of the defendant failure to CORNELIUS, Before and BLEIL C.J. Marable, wife, Virginia, daugh- and GRANT, and JJ. ter, Mary, jointly were tried and convicted of the marihuana. None During testified. the summa- defendants

OPINION the made the tion of case BLEIL, Justice. following remarks: appeals his conviction for James Now, I don’t is. know what the defense possession of marihuana. The issues we “Somebody defense else was Is the appeal proprie- on address this concern defense, growing just it”? Is “We argument ty prosecution’s jury and popped up know it on our didn’t rows sufficiency of We con- the evidence. defense, grow- place”? Is the “We were argument prosecution’s jury that the clude garden popped ing just and this stuff error, but that suffi- constitutes reversible mean, I I don’t didn’t up”? know. supports There- cient the verdict. hear that much of a defense. fore, we reverse the and remand The court overruled defense counsel’s ob- case for a trial. new jection argument and a mo- to denied 1989, flying August light in a In while mistrial. We wheth- tion for now consider game vege- plane, warden saw land improper er the constituted an recognized as marihuana. tation on the failure to testi- comment of Marable warrant and obtained a search Officers own fy on his behalf. They found two searched testify, a defendant to When elects not ap- of marihuana. The were fields proper subject is not a for com- his silence rows, tall, planted ten feet proximately ment, by directly indirectly, either from view partially were screened and v. prosecuting attorney. Dickinson planted of corn. The row weeds 320, 685 S.W.2d obtaining ap- plants, harvested the officers on a failure to testi- defendant’s Comments of marihuana. ninety pounds

proximately I, Const, as well fy art. violate § Tex. Additionally, it is amend. V. Const, located on as patches were U.S. Marable, statutorily prohibited. by Mary property rented CRiM. Tex.Code 1979); (Vernon Marable, see art. 38.08 daughter Virginia of James and PROC.Ann. 527 S.W.2d issuance of the also Bird years before the about argu- (Tex.Crim.App.1975). In order for resid- warrant. All of the Marables search type constitute reversible ment of property, consists about which ed on intended manifestly either be of mari- error it must seventy largest patch acres. The be, than or of such a there were defendants rather character three one, pronoun “we” naturally necessarily person take first it to any of be, something on a comment the defendant’s failure to was used in reference might have to but defendants Griffin *3 (Tex.Crim.App.1977). prosecu- compelled If the to that 690 did not. We are conclude argument in was argument jury’s prosecutor’s the this ease tor’s directs the attention only impermissible is comment on the defen- lacking, to evidence that which the an testify. Having er- supply, defendant can the defendant’s dants’ failure to found con- State, v. in Owen proceedings viction must be reversed. ror the below 458, (Tex.Crim.App.1983). beyond to reasonable 459 unable determine a 656 S.W.2d mind, made no guidelines these in we now ana- doubt that the error contribution With punishment, the we are lyze argument prosecutor the the to the conviction or made judgment. Tex.R. required to the against reverse in the case the Marables. The App.P. 81(b)(2). prosecutor argued that “I don’t know what is.” Is Is it “I the defense it this? that? reverse and remand Ordinarily, we would mean, I didn’t hear much of that trial address- this cause a new without By arguing does not fense.” that he know However, in case the ing other issues. this is, prosecutor what the defense the makes sufficiency of challenged the defendant has referring he is not to or attack- clear that support conviction. the evidence to ing any defensive theories which have actu- sup- the is insufficient to When evidence appears ally presented. This remark port a a defendant cannot be conviction patently jury’s direct the attention to the to again. required we to tried Therefore are only lacking that the fact that evidence is sufficiency of evidence address the the supply. defendants could question. argument case is similar to determining question In the suffi- State, in Cherry v. that condemned 507 evidence, ques- ciency of the relevant the There, (Tex.Crim.App.1974). S.W.2d 549 whether, viewing evidence tion is after argued as follows: verdict, light favorable to the most

Now, what defenses are available to a fact found any trier of could have rational one, in a case Number person like this? beyond of the crime the essential elements else, alibi, / was was somewhere Virginia, v. Jackson a reasonable doubt. 2789, someone else. 319, 2781, 307, 61 443 U.S. 99 S.Ct. State, Butler v. (1979); 769 L.Ed.2d 560 case, pros- In that court found 234, 239 S.W.2d use of the “I” contradicted ecutor’s word wholly circum- evidence is When State’s referring theory that he to any wit- here, stantial, must it is Cherry other than the defendant. nesses hypothesis except every exclude reasonable State, Concerning v. at 550. 507 S.W.2d otherwise, guilty guilt; the defendant’s Cherry nature, of this deci- finding. Freeman is a rational verdict to. The closely has been adhered sion State, 450, (Tex.Crim. 454 654 S.W.2d subsequent- Appeals has of Criminal App.1983). that, ly held word “I” is used reference When charged with When a defendant might something the have defendant substance, a controlled possession of to, not, illogical it is but did testified care, prove must exercised State is not reminded think that control, management over the substance This is a failure to defendant’s object possessed knew the he he 38.08 example Article what classic State, 635 Rodriguez v. was contraband. prevent. trying Op.] (Tex.Crim.App. S.W.2d [Panel 1982). need not exclusive. (Tex. Possession 702 S.W.2d Cook accused here, Evidence shows like which Crim.App.1985). The remarks an the contraband with Cook, example jointly possessed are a classic those in Rodriguez v. Here, however, is sufficient. argument. prohibited However, 635 S.W.2d at 553. the evidence in 800 feet of the Marables’ residence and must affirmatively link the accused to the twenty within feet of their barn. contraband in such a manner and to such Bolt, jail, Glen an inmate of the an extent that a reasonable may inference that while jail Marable was in he told him arise that he knew of its existence and that people that he “had harvesting his other he exercised control of it. Nunn v. marihuana, having it moved out” and that (Tex.Crim.App. [Panel bring he would Bolt some marihuana to the Op.] This link may be established jail. Bolt testified that Marable later by showing additional facts and circum- brought paper sack with marihuana to stances which establish the accused’s jail dropped it in dump- the outside *4 knowledge and control of the contraband. ster accordance with their conversation. State, McGoldrick v. supports Sufficient evidence the convic- (Tex.Crim.App.1985). Thus, a review of tion. The sufficiently links Mara- the evidence necessary. is care, planting, ble to the and control of the Although the Marables were rent plants and is sufficient to ex- ing property, they large constructed a every hypothesis. clude other reasonable greenhouse 1,500 Approximately on it. Finding support sufficient evidence to plant cups starter were found near the verdict, concluding but prose- that the They barn. had been used and were the improper cutor’s comment on the defen- type commonly used to start small seed testify dants’ failure to reversi- constitutes lings. There is evidence that there were error, ble we reverse the only farm, two cultivated areas on the and remand the case for a new trial. planted the marihuana had been distinct rows and had been watered and CORNELIUS, Justice, dissenting. Chief single fertilized. A corn row of had also prosecu- dissent. I do not believe the planted been partially and located so that it improper tor’s comments were an allusion visibility larger obstructed the of the mari testify, to Marable’s failure but that patch private huana from a farm road that they actually were reference to defense paralleled one side of the As presented by witnesses Marable. earlier, noted a three-wheeled vehicle was parked residence, next to the Marables’ Comments on the accused’s failure to testify privileges against well-defined trail led from the residence violate the self-in- largest around the barn to the crimination contained in the United States patch. Constitutions, A water hose ran from the barn to and Texas as as the well marihuana, specific prohibition and there were various oth Tex.Code Crim.Proc. (Vernon 1979). designed sprinklers. er hoses for use as art. 38.08 Bird v. Ann. State, sprinkler (Tex.Crim.App.1975). There was also the homemade 527 S.W.2d 891 barn, only located six or seven For a comment to such a viola- beside constitute however, tion, implication feet from the marihuana. that the lan- guage referred to the accused’s failure to prop- The evidence thus indicates that on testify necessary must be a one. It is not erty possessed by the Mara- controlled language con- might sufficient be bles, patches of marihuana were implied strued as an or indirect allusion. carefully grown and tended. The Marables language The test is whether the was mani- property had in sole festly intended or was of such character during all relevant times. There was evi- necessarily take it to Mary dence that James and Marable built a comment on the accused’s failure to testi- greenhouse. Although there was evi- State, fy. supra, and authorities Bird v. farmer, was a there dence that Marable there cited. he “nur- was no indication that Ordinarily, personal pronouns sery greenhouse” business. The mari- the use of transplanted to raise a huana had been from in a comment about the failure necessarily refers to the defen- pots majority and the of this occurred with- defense stated, failure to affirm dant’s For the reasons I would Cook judgment. (Tex.Crim.App.1984); 702 S.W.2d 597 Cher- (Tex.Crim.App.

ry v. 507 S.W.2d 549 however, true, That is if the alluding actually comment a defense through the defendant advanced witnesses, distinguished from a failure a defense. raise Solis v. (Tex.App.-Texarkana 1986),

S.W.2d grounds, rev’d on other 792 S.W.2d 95 MARABLE, Virginia Appellant, case, In this produced two Texas, Appellee. The STATE witnesses, Jerry fense Bor- Davis and J.O. No. 6-90-009-CR. principal den. Davis was the of the school co-defendant) (a Mrs. Marable where Texas, Appeals taught. He testified about Mrs. Marable’s *5 Texarkana. bringing apparent gardening activity, her Nov. 1990. plants, vegetables, spices to various and pots trays school in and to those similar Rehearing Overruled Dec. 1990. farm, the Marables’ she found on and that greenhouse.

had a This was obvi- ously produced advance Marable’s they incriminating fense that used ma- gardening, terials harmless rather than growing marihuana. Borden Witness owned 700 acres which adjoined property leased the Mara- that bles. He testified he was a farmer raiser, Marable, and cattle was James that he had discovered marihuana growing com- property on his own that had pletely escaped his in all of his farm- notice He

ing operations. further testified that property, he had on the that been “grown up” area, it was a and that he did any see on that not ever testimony It is obvious designed to advance defense was Marable’s conducting farming he was usual gardening place activities on and it was him unusual for unaware that

not growing there. In his actually questioning the defense that had by the advanced Marables’ witnesses. Therefore, pronoun his use of “we” did refer to Marable’s failure to White, Pleasant, appel- Mount for Jimmy Rather, question- paraphrasing he was lant. Marable had

ing the defensive evidence Sulphur Long, Atty., Dist. actually produced through other witnesses. Frank State, supra. Springs, appellee. Solis