*2
DAVIS,
Before TOM G.
no statements
in the
McCORMICK
made
TEAGUE,
was arrest-
Shoquist. Everyone
JJ.
gave
when
went
a moved
the rear of the
to retrieve
Shoquist
ed
outside
house
large
signal
the contraband. This
of con-
sеcret
to a number of officers who
traband was then
another por-
returned to
were nearby.
displayed
pro-
tion of the house and
In order to establish the unlawful
purchaser. All of
spective
these events oc-
substance,
possession of a controlled
presence.
curred in
We
find the
prove two elements:
State must
to support appellant’s
evidenсe sufficient
*3
care, control,
the
exercised
and
accused
conviction.
contraband,
management
and
over the
error, appellant
In his
of
ground
third
possessed
that the accused knew the matter
contends
he was denied the effective
that
State,
Dubry
v.
was
Tex.Cr.
contraband.
Appellant
assistance
counsel.
maintains
of
App.,
necessary
It
582
841.
is not
to
S.W.2d
by his
suсh denial
retained counsel
arose
prove
posses
that the accused had exclusive
and
representing both him
another individ-
Damron
question.
of
in
sion
the narcotics
to the
ual
trаnsaction.
State, Tex.Cr.App.,
v.
fundamentally defective. He maintains question majority may I also whether the alleged indictment should have statement, Shoquist’s consider in its sum- appellant’s possession marihua- mary, appellant going as to what to do na was “unlawful.” This contention is notebook,” “spiral with the for the record presented appeal. for the first on time following: reflects the Q And what did he do with the alleges
The indictment in this cause in [Wasaff] box once he arrived in the room? pertinent part that on October down, appellant: A They apparently set the boxes they because were later —I found them knowingly “. .. did then and there the —or that’s what the marihuana was intentionally possess usable they in. And showed them to contained marihuana of more than four ounces bedroom, they apparently me in that *4 and set them down in the front bedroom 4476-15, V.A.C.S., 4.05(a), pro- Art. Sec. then came back in the room. except by vides that as authorized the Con- Q being— They Act, person trolled commits an Substances A Wasaff and Hobbs. And then we all knowingly intentionally offense if he or more or less had a discussion about where possesses a usable of marihuana. at, going weigh we were to them and 5.10(a), supra, provides Sec. as follows: triple Hobbs said he had a little beam necessary “It is not for the state to ne- only weigh scale which would about one gate аny exemption exception or set apparently brick at a time. And Mr. any complaint, forth in this Act in infor- weights Pollan going to record the mation, indictment, pleading or other or up and total them at the end. trial, any in hearing, proceeding or other object MR. I STERNBERG: to that Act, going under this and the burden of statement, Your Honor. It’s a conclusion forward with the respect evidencе with to part on the of this witness. any exemption exception or upon shall be may testify THE He as to COURT: the person claiming its benefit.” on, opinion what his was based but not The required State was nоt to al his opinion. lege appellant’s that possession was unlaw Unfortunately, prosecutor the did not ask being ful as unauthorized the Act. See Shoquist say opinion not what “his and did Bailey Tex.Cr.Aрp., 559 S.W.2d was based on.” 958; Vasquez v. Tex.Cr.App., 522 my part appel- I suspicions have as to reject appellant’s 910. We S.W.2d conten transaction, with play lant was to in this tion that the indictment is fundamentally choose, notebook,” “spiral but I do not defective. does, apparently to affirm a majority as the judgment The is affirmed. and, suspicion speculation or conviction on therefore, respectfully dissent. Com- must TEAGUE, Judge, dissenting. State, Tex.Civ.App., 555 pare Harrison v. disposition majority I dissent to the “However, (1977). 737 a find- S.W.2d makes of first of error justified ing joint possession cannot be of thаt “the evidence is insufficient to estab- of mere of an solely by proof guilty lish that contraband is be- accused at a where charged possession offense of of more than meаns ing possessed.” used or “Possession is; marijuana,” four ounces and would hold it more where the action than that the evidence is sufficient sustain not to of dominion and con- involves the exerсise allegedly possessed.” the verdict of the trial court and would thing trol over the State, Tex.Cr.App., order the Shortnacy conviction reversed. To do other- wise, (1972). Underwood v. my opinion, engage is to in See also rank displayed prospective pur- (1978); Ayers v. band 571 S.W.2d chaser, Armstrong guilty then he is as as those who illegal contraband. Tex.Cr.App., actually possessed thought, by the cases of this Previously, I pos- the offense of In order to establish Court, possession meant more than be- that such as session of an unlawful substance However, if one is ing where the action is. mаrihuana, pos- the law of as I understand is and fails to where the action present session, mandatory for the to it is State proverbial monkeys, by three make like the (1) knowledge of provе components: two failing eyes, failing cover his to cover his is, or actual what the substance ears, failing lips, to unseal his he will care, or man- custody, constructive control possеssion offense of guilty be now Art. 4476- agement of the substance. See holding To this I illegal contraband. V.A.T.C.S., 1.02(23), the Controlled Sec. respectfully dissent. Act, “posses- the word Substances may very well is defined. Thе sion” State component, they proved
have the first second, and it is man-
failed to establish a rea-
datory proved beyond that both be
sonable doubt. construc- argued appellant
If it be marihuana, argu-
tively possessed the utter appellant fails: no time did ment at ROHLFING, Henry Appellant, Michael *5 encouragement; he was nev- any words of er, by рresence, mere connected other than marihuana was Texas, where the Appellee. residence The STATE of arrested; he was there seized and where No. 60104. appеllant ever exercised showing no Texas, Appeals Court handling the boxes which of Criminal any control or marihuana; no evi- Panel No. there is contained the showing there flight; there is no dence of 11, 1981. March marihuana in the any odor or aroma of air; gestures; were no furtive there was under the showing appellant
there is marihuana. any drug, including
influence of sum, posses- even constructive
In to show
sion, some affirm- thought I there had to be existing person ac- link between
ative contraband. For an
cused and the unlawful point, the read- discussion of this
excellent opinion
er’s attention is directed State, Tex.Cr.App.,
Hausman facts far (1972), case which reflects here, which was
stronger those than
reversed this Court. holding of the appears, by now
It exception an to the rule
majority, there is at a of an accused
that mere possessed contraband is used or joint to establish
by others is not sufficient is that if the
possession. exception That juxtaposition to the is ever in close
accused present when the contra-
contraband and is