689 S.W.2d 485 | Tex. App. | 1985
OPINION
This is an appeal from a conviction for possession of more than four hundred grams of cocaine with intent to deliver pursuant to TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.03 (Vernon 1976). Appellant waived trial by jury and pled not guilty. Punishment was assessed by the court at ten years in the Texas Department of Corrections. In two grounds of error the appellant alleges the evidence is insufficient to support the conviction. We sustain his grounds of error and reverse the conviction.
On March 29, 1983, Officers Slay and Furstenfeld of the Houston Police Department were monitoring passengers departing from a Continental Airlines flight from Miami pursuant to their assignment to the Narcotics Division of the Airport Detail. They observed the appellant leave the plane with another passenger named Alase-do. The appellant and Alasedo waited in the terminal concourse until joined by a man named Morales and a woman, both
Every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence to support the conviction. See Russell v. State, 665 S.W.2d 771 (Tex.Crim.App.1983) (en banc), and cases there cited. The reviewing court will look at all the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (en banc). A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused, although the circumstances need not exclude every hypothesis, only those reasonably consistent with the facts. Russell, 665 S.W.2d at 776. Proof amounting to only a strong suspicion or mere probability is insufficient. Id. at 775. In order for the offense of possession of a controlled substance to be proven, the evidence must show that the accused exercised care, control and management over the drug and that the accused knew the drug was contraband. Morr v. State, 587 S.W.2d 711 (Tex.Crim.App.1979). A finding of joint possession cannot be based solely on proof of mere presence at the place where contraband is found; there must be an affirmative link between the accused and the drug in such manner, and to such an extent, that a reasonable inference may arise that the accused knew of the drug’s existence and its whereabouts. Gutierrez v. State, 628 S.W.2d 57, 60 (Tex.Crim.App.1980), and cases there cited.
The state contends that the affirmative link between the appellant and the contraband is most clearly established by the appellant’s possession of the airline ticket folder which held the claim check for the bag containing the cocaine. The state also contends the appellant’s “guilty knowledge and intent to deliver can all be presumed from his nervous association with the other three passengers culminating in his delivery of the airline ticket folder to Morales.”
Appellant contends, and we agree, that the link is too tenuous to support his conviction. Officer Slay, who arrested appellant, testified that the reason he arrested the appellant was not because he saw him hand Morales the ticket folder but because he thought appellant “was with Mr. Morales and was involved in the same illegal act that Mr. Morales was involved in.” In any event, a review of the record reveals that there is considerable doubt as to whether appellant is linked at all to the ticket folder, tickets, baggage or claim checks involved with the cocaine. Officer Slay testified at the hearing on appellant’s Motion to Suppress that he was unable to
The appellant’s own explanation was that he had traveled to Miami for a two-day trip to visit his mother-in-law, had left his airline ticket in the seat pocket on the plane, had taken no baggage because it was a short trip, and was waiting for someone to pick him up from the airport when detained by customs. He testified that he was somewhat nervous about the customs agent because although he is married to an American, he is a Cuban national. The record also indicates that after the customs agent detained him, he waited patiently outside the restroom while the agent searched it, making no attempt to escape. Appellant denied knowing Morales, Alase-do or the woman and denied being nervous until approached by the customs agent. No attempt was made to determine if appellant’s ticket was left on the plane or if appellant was on the airline passenger list. Even if the folder containing the baggage claim tickets found on Morales was the same one given to him by the appellant, there is no evidence that the folder originated with appellant or that appellant had any knowledge of the contents of the baggage. The line is simply too thin to catch this fish.
We hold the evidence is insufficient to prove an affirmative link between the appellant and the cocaine. Accordingly, we reverse the judgment of the trial court and remand with instructions to acquit.