Marsh v. State
684 S.W.2d 676
Tex. Crim. App.
1984
Check Treatment

*1 denial, contending that he was not in liable in he was sued. There capacity which fore, Hanyard properly could be held liable corporate capaci either individual ty. support judg There evidence to against individually because Hanyard ment question he executed the contract Enterprises, Hanyard Bernard Inc. was Co., 128 formed. Bibbee v. Root Glass (1936); Tex. S.W.2d 975 Weather ford, Ry. Granger, M.W. & N. Co. v. W. (1894). Tex. S.W. 795 We hold that appeals holding the court of erred individually Hanyard liable. grant we Pursuant Tex.R.Civ.P. and, hearing of error oral the writ argument, judgment reverse appeals judgment court of and affirm trial court. Elliott, Churchill, Hansen, Maxfield & Hansen, Dallas,

Gibbs, Roger peti- A.

tioner. Aranson, B.

Law Offices of Mike Edward Dallas,

Klein, respondent. MARSH, Appellant,

Robert L. PER CURIAM. arising This is a breach of contract action Texas, Appellee. The STATE of cost-plus construction contract. out of a No. 169-82. by painting The sub- action initiated against W.O.S. Construction contractor Texas, Appeals of of Criminal contractor, and Ber- Company, the En Banc. Hanyard, building owner. W.O.S. nard 24, 1984. Oct. Hanyard against cross filed a action Enterprises, Inc. Hanyard for la- Bernard pursuant furnished

bor and materials trial The court rendered contract. against of W.O.S. Ber-

judgment favor individually. Hanyard,

nard opinion,

appeals, unpublished in an held individually Hanyard was not

that Bernard

liable. requires party to file a

Rule in order to assert “that pleading

verified recover in the is not entitled to plaintiff sues, or that the de in which

capacity capacity is not liable

fendant 93(2)(Ver he is sued.” Tex.R.Civ.P. file a 1984). Hanyard did not verified

non *2 Ervin, Tarrant, Houston,

Don W. Robert appellant. for Meitzen, Atty., William Dist. and Thomas Culver, III, Richmond, Atty., R. Asst. Dist. Huttash, Atty., Austin, Robert State’s for the State.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW DAVIS, Judge. W.C. jury possession

A convicted of over four ounces of marihuana as punishment at years’ sessed ten confine ment and a fine. $5000.00 Appeals for First Judicial Dis trict, 630 305 affirmed the convic granted We appellant’s petition tion. for discretionary light review Robbins v. 420, 101 California, 453 U.S. S.Ct. (1981), L.Ed.2d Robbins has since disapproved. been See United States Ross, (1982).

L.Ed.2d 572 We will discuss the questions by appellant in light raised applicable law. 27, 1978, car he evening

On the March Texas Cadillac as same had seen on the Ranger on Ray fishing Scholton was ranch a Pearson and week before. another County. ranch Fort Bend Scholton man to had been whom Scholton introduced permitted to fish on ranch in re standing had been beside Cadillac at keeping eye trespassers turn out that time and Scholton testified knew Shortly mid cattle thieves. permitted car was the ranch *3 night activity” Scholton saw “a lot of near time. grass landing strip, the ranch’s about x/4of and Scholton Lee followed both vehicles away. people mile a He saw several whom tried, success, continuously to and Cadillac, identify, he not a could a stop police a marked car them. contact to camper-equipped pickup truck near the After a few miles the Cadillac continued strip. flashlights. He also saw flares and north; pickup east and the turned Scholton Scholton testified that he did not know followed the truck. people trespass- whether he the saw were Appellant pickup was the driver of the land, ing permission or had to on the pulled He testified he truck. had off suspected illegal activity. he stopped the road and because the officers Scholton left the ranch and drove four lights up car and drove flashed the their Simonton, to telephoned miles where he the bumper. rear very close to his Scholton County Department. Bend Fort Sheriff’s they Lee testified that did not flash Guyler He Road toward the drove back on lights pulled and that had their ranch. He next to some cattle the road of his own accord. off pens landing yards or less from the minutes, strip, for 2 stayed there or truck, pulled ap- in Scholton behind circling airplane an low saw overhead. rifle, with proached the driver’s side a approached Lee ordered the driver out. admitted on Scholton cross-examination passenger side of the truck with his in report that he had written his offense gun passengers hand and ordered Pearson, owner, the son of the that Robbie man, Appellant, out. another and their premises. seemed to be control wives, pick-up. were Scholton testi- a week He testified that earlier Pearson people fied that at that time none of the waiting told him that he was for a had to were free leave. Scholton asked into ranch fly friend to an aircraft Appellant lant for identification. stated night. The record not clear whether this he not he particular night supposed any. to be the did have Scholton said preceding they the offense or find if night immediately wanted to out violated night to the prior a week offense. How- and “had a truck law load contraband.” ever, knew that the friend had not Scholton also testified that he shined his Scholton by the time of the instant events. flashlight pickup arrived into the back of tarpaulin covering type of some observed four miles left and drove about Scholton cargo. Appellant told Scholton exchanged Wallis, pickup where feed fertilizer. vehicle contained Schol- He for a car with a radio. truck open the rear of the ton asked picked Deputy Larry Sheriff Lee and up if pickup. Appellant refused and asked Guyler road toward drove back Appellant had a search warrant. Scholton parked the car on the side of He ranch. him asked Scholton to read his Miranda gate 1½ miles from a en- the road about eventually camper rights and shell was ranch. to the trance opened. this, Scholton Lee saw Soon after claimed that he wanted the back Scholton coming from the headlights of two vehicles personal safety his own passed opened for car. When ranch toward their might be he felt there contraband. them a because identified as Cad- car he Scholton’s ap- that he smelled “what camper. Lee testified pickup truck with illac and marijuana” coming from the recognized peared to he that he testified Scholton track, although emergency landing, back of the he could and the it. see Lee testified that he noticed this that clandestine rendezvous with aircraft in odor of passen- marihuana at the time the night remote locations the dead of are gers getting pickup, were out of the practice drug importation standard camper opened. shell had been Subse- trade, gave rise a rational inference that quently camper opened and six reasonably warranted intrusion bales of plastic marihuana cov- investigative stop appellant. ering lettering that said “Matamoras Appellant next contends that the trial Fertilizing Company” were found. Schol- erroneously admitted into evidence ton said he first smelled marihuana at the product which was camper top time the opened. search. arrest and He contends that Appellant contests the initial pickup the search of the was unlawful be- *4 by Scholton and Lee. The testimony that probable cause no cause existed search to pickup pulled the off the road and exigent and no present circumstances were following and that officers permit to the warrantless search and sei- just pulled car approached behind and zure. guns car with drawn does not alter the Having determined that the initial investigation “stop.” nature of the aas proper, was consequence, giv we find as a State, (Tex.Cr. v. 598 Ebarb S.W.2d 842 en deputy that Lee detected the odor of App.1979). When the ap officers ordered coming marihuana from pickup, that pellant and, and the others out of truck State, proper. search was also Razo v. testified, as Scholton were not free to 577 (Tex.Cr.App.1979); S.W.2d 709 Att go, they Ohio, had been Terry “seized”. v. State, (Tex.Cr.App. wood v. 509 342 S.W.2d 392 U.S. 88 S.Ct. 20 889 L.Ed.2d 1974); Ross, v. supra. United States (1968). The officers’ observing, actions in following, Appellant finally and detaining appellant must contends that the necessary meet the justify standard evidence was insufficient to sustain intrusion an investigative stop. prove of conviction because the State did That requires appellant knowingly possessed standard that the that law enforcement specific, facts, officer have support marihuana. To a conviction for articulable in light possession of his experience marihuana the evidence must knowledge, together affirmatively link the con rational inferenc accused facts, manner, es from those traband in reasonably would such and to such an war extent, may rant the intrusion on that a the citizen. v. reasonable Terry inference Ohio, supra; State, 621 arise that the accused knew the contra Williams v. S.W.2d existence and of (Tex.Cr.App.1981); 609 v. band’s its whereabouts. Brem State, State, (Tex. (Tex.Cr.App.1978). Christopher 571 S.W.2d 314 v. S.W.2d 932 State, test, suspicions Cr.App.1982); Mere v. do not meet this Hull Sewell S.W.2d State, (Tex.Cr.App.1979). (Tex.Cr.App.1981), v. 613 S.W.2d 735 certainty required. neither absolute possession The oft-stated rule in cases State, (Tex. Armstrong v. 550 S.W.2d 25 following: 1977). Cr.App.1976, opinion rehearing consistently It has been held this State specific possession just and articulable facts that means more than is; which Scholton drew inference being from where the action the State must activity might prove (1) be occurring that two the accused elements: that care, control, necessary, investigation including management exercised arrival, contraband, (2) plane’s of the hour of the lateness over cargo activity unloading possessed consistent with the matter accused knew Therefore, persons, in the dark several the caravan contraband .... there must indicating planned activity by independent be facts cir- and flares additional affirmatively rather or persons, several than a random cumstances which link the State, presumed. Armstrong man- not v. accused to the contraband in such a ner he had (Tex.Cr.App.1976).” it can' be concluded knowledge the contraband as well as appellant can be said Much the same over it. control Appellant was the case. test must prongs Both of the be met. camp- pickup of a truck which had driver Examples of the kind of additional facts pickup. There er shell over the bed can and circumstances which indicate the window was is no evidence whether when an accused and control open partition between the interior usually in a vehicle involve a combination cab of the truck where State, facts, e.g., Deshong S.W.2d sitting where the marihuana and the back (marihuana open (Tex.Cr.App.1981), Appellant did not own the was found. view, ac plain conveniently or marihuana truck, and he told Scholton that the truck driver, the driver shown cessible to “feed fertilizer.” The mari- contained or car); State, to be the owner of the Duff plastic was found sealed huana (a (Tex.Cr.App.1977), 546 S.W.2d 283 bearing “Matamoras bundles the words strong car, odor of in the either is no evidence Company.” Fertilizer There raw, recently smoked or contraband found any was found on contraband accused, on the or the accused under the person was under lant’s marihuana, conflicting sto influence of any drug. the influence of car). as who ries controlled See also *5 facts, Despite these the instant case State, (Tex.Cr. v. 625 S.W.2d Johnson distinguishable there Reyes from because State, 601 App.1981); Olguin v. are additional facts and circumstances not (Tex.Cr. App.1980). suffice to link Reyes that State, (Tex.Cr. Reyes v. 575 S.W.2d so that a lant to reasonable App.1979) presents a fact situation similar appellant that inference arises knowl- Reyes the instant case. In the defend edge was marihuana. that the contraband passenger in a ant was a four-wheel drive discovery Reyes of marihuana The Plymouth Trail Duster. The sheriff speeding stop came as a result of a a type of raw mari smelled odor “bulk There was no evidence about violation! emanating huana” from vehicle. The come from or about the where the car had to open driver was told the back of the finding passenger The of insuf- large of car. tarpaulin A covered several vehicle. marihuana, ficiency on the lack of evidence to plastic-wrapped of rested bundles partition prove recognized pounds in all. There was no be that the defendant passenger compartment and the tween the odor as marihuana and thus knew that the the marihuana rear of the vehicle where was marihuana. contraband fac This Court noted several was found. In instant case there are incrimi concluding that the evidence was tors in odor strong other than the of nating facts link the de affirmatively insufficient the truck near marijuana. Scholton saw there no to the contraband: was fendant ranch, strip in the area landing on in that was under the evidence taking place. activity” “a of where lot drug; marihuana or other there fluence of flashlights people He with flares and saw any on he had contraband was no evidence circling the land plane a low over and saw vehicle; did not own the person; activity ing strip. suspected He plastic bags marihuana was occurring. the same truck Scholton saw and, perhaps tarpaulin; a covered appellant was driv leaving the ranch and odor, concerning the significantly most stopped short time later. ing it was a when may acquired have Deputy Perez “While surrounding stop From these facts detecting marijuana the odor skill of rational inference that it a vehicle it investigations, was through his narcotic landing present at the appellant had been appellant knew the that not shown place. This activity took expertise may strip when all such smell of marihuana inference, together previously proposition by majority. de- stated with the 21, Id., on S.Ct. at 1879. activity scribed circumstances U.S. But the night of the Supreme ranch in the middle and the Court United States and as stop, provide circumstances of the the nec- this Court well have since made clear stop essary investigative justified independant additional facts cir- must be affirmatively ap- by cumstances link the some manifestation “is, be, pellant person stopped to the contraband in such a manner or is about to en activity.”1 gaged that it in criminal United can be concluded he had 417, 101 Cortez, of the contraband as control over it. v. well as States 690, 695, (1981); Reyes, Unlike in which odor alone was the 69 L.Ed.2d 621 Hull v. link, State, presents stop (Tex.Cr.App. the instant ease a with a 613 S.W.2d stop discovery 1981); State, context in which the Armstrong v. 550 S.W.2d the marihuana must be generalized viewed. From (Tex.Cr.App.1977). “That a these additional facts a rational inference suffice” demonstrat suspicion will not arises that State, knew that marihuana supra, ed Court in re this Hull context, inwas the truck. Seen it part teachings by the lying large unani can be concluded that the suffi- evidence Cortez, supra. mous ciently appellant’s knowledge shows of the off, writing First for the Supreme Court Christopher State, marihuana. See also past usage the Chief Justice noted of “a (Tex.Cr.App.1982). 639 S.W.2d 932 variety capture of terms to con- elusive judgment of the of appeals cept of what cause is sufficient to autho- affirmed. person,” including rize terms like “articulable reasons” CLINTON, Judge, dissenting. suspicion;” “founded are not stated, Simply the majority would have it “self-defining” and, more point, to the every night peace officer sees an “they providing short clear guid- fall airplane “circling pri- low overhead” near dispositive myriad ance situ- factual *6 landing strip vate where there are flares 417, ations that arise.” at 449 U.S. flashlights persons several Thus, proposition S.Ct. 695. which vehicles, may about motor later intrude majority today applying is is passe. personal security into the of the driver and Continuing Chief Justice said: occupants of the vehicles violating statutory constitutional all restraints “But the essence of that has been against totality unreasonable seizures. written is that of the circum- picture stances—the whole be tak- —must Calling it investiga- “the intrusion of an upon that en into account. Based whole stop,” majority tive it says that was detaining picture the officers must have by warranted a rational inference drawn particularized for basis specific “from and articulable facts” that suspecting particular person “illegal activity might occurring and in- activity. of criminal [Citations However, vestigation necessary.” Ibid. omitted.]” majority pic- does not consider “the whole ture,” by even the “facts” selected Turning to explicate just what had been majority are consistent with innocent be- established, the pointed Chief Justice out: persons in any havior of involved other “The idea an assessment of the airplane midnight private arrival of an on a picture yield particularized whole must landing strip. suspicion elements, contains two each of Ohio, Terry S.Ct. which must be (1968), First, is the permissible. L.Ed.2d 889 source the assessment must throughout emphasis supplied by 1. All cated. opinion writer of this unless otherwise indi- upon all the circumstances.

be based

[******] in the

“The second element contained of the whole

idea that assessment suspi-

picture yield particularized must concept process just is the that the

cion suspicion raise a that the

described must

particular being stopped is individual wrongdoing.

engaged in Chief Justice

Warren, Terry speaking for Ohio, supra, ‘[tjhis demand said that upon specificity the information predicated is the action teaching this Fourth central Court’s ’ jurisprudence.

Amendment [Citations Id., 449 U.S. at omitted.]”

at 695.3 opinion Court then principles just dis-

demonstrates that the implicated are that cause

cussed how “fact

pointing out meticulous detail on clue a basis

on fact and clue afforded and inferences that

for the deductions

brought officers to focus on sus- [a

pect].” majority does not—indeed can-

Since formulation, I re-

not—follow the Cortez

spectfully dissent. MILLER, JJ., join.

TEAGUE *7 TAYLOR,

Ricky Appellant, Texas, Appellee.

The STATE

No. 423-82. Texas, Appeals Criminal

Court of

En Banc. 21, 1984.

Nov. Burger. Emphasis is Chief Justice making 3. assessment a trained officer 2. In deductions from and make will draw inferences observations, data such as available reports consideration of modes operation patterns of kinds lawbreakers.