*3 CORNELIUS, C.J., Before BLEIL and GRANT, JJ. OPINION BLEIL, Justice. appeals for
Robert from convictions White possession possession with of marihuana and cocaine, out of intent deliver which arose episode. the same criminal The main issues for legality before us concern the of a search the cocaine seizure of the conviction. evidence We resolve most issues favor of but conclude possessed insufficient show White When the officers arrived at 306 Wal Therefore, nut, White, they along cocaine. affirm saw with several other marihuana, persons, in possession person of conviction of the vacant lot. Another but working cocaine, on a fence around the vacant possession as to the lot we reverse at 310 Walnut. The officers arrested White remand the cause to the trial court. brother, White, and his Ronald and took Walnut, them to the residence at 306 where SEARCH AND SEIZURE upon the search of the residence commenced. drug paraphernalia Marihuana and were attorney sought White’s at trial search, found inside the house. After that suppress the cocaine because the search that the officers went to the vacant lot at 310 rights revealed the cocaine violated White’s *4 Walnut. There was a boat on the lot. In the under the United and States Texas Constitu bow of the boat the officers found a tackle tions. See U.S. Const. amend. IV; Tex. box that contained the cocaine. I, § Const. art. 9. The essence of com the plaint fact concerns the that the search war expecta- We conclude that White had no rant authorized search of a house at 306 privacy tion of in the vacant lot because the Texas, Longview, Walnut Street a resi part vacant lot was not of his residence its White, by others, among dence owned and curtilage. deny The State did not White his the cocaine was found in a vacant lot at rights 310 under the Fourth Amendment or Arti- I, Walnut Street. The house at 306 Walnut has cle Section 9 of the Texas Constitution. privacy separating fence it from the vacant door, by lot next which is not owned White. SUFFICIENCY OF EVIDENCE Facially position appears this sound in that analysis We now turn to an property the cocaine was found on that was challenge sufficiency to the of the evidence. not authorized to be searched. The Fourth error, points of Because the nature of the of protects Amendment individuals from unrea challenged we consider that White has the sonable searches and seizures that on intrude being legally factually evidence as both and expectations privacy. reasonable of Horton support insufficient to his conviction. In de 128, California, 133, v. 496 U.S. 110 S.Ct. termining legally whether evidence is suffi (1990). 2301, 112, 110 L.Ed.2d 120-21 How judgment, cient to we view the ever, White, cogently pointed by as out the light evidence in the most favorable to the area where the cocaine was found was not prosecution and determine whether a ration part yard, of White’s house or but was in a al trier of fact could have found the essential Although vacant lot next door. the Fourth beyond of elements the crime a reasonable special protection Amendment accords 307, Virginia, doubt. Jackson v. 443 U.S. houses, people in persons, papers, their 319, 2781, 560, 99 S.Ct. 61 L.Ed.2d 573 effects, protection is not extended to State, (1979); 154, Geesa v. 820 S.W.2d 155 State, open fields. Hurwitz v. 673 S.W.2d (Tex.Crim.App.1991). jur Our exclusive fact 347, 1984), (Tex.App.-Austin aff'd, 349 700 per under isdiction the constitution also both (Tex.Crim.App.1985), S.W.2d 919 cert. de requires mits and us to review for the factual nied, 1102, 884, 474 U.S. 106 S.Ct. 88 sufficiency sufficiency of when the the evi (1986). L.Ed.2d 919 “open The term field” challenged appeal. dence is v. Williams any unoccupied be defined as or unde State, 915, (Tex.App. 848 916-17 S.W.2d veloped curtilage area outside of a the dwell 1993, State, pet.); -Texarkana no Stone v. 823 State, ing. 132, Beasley v. 375, 1992, 683 S.W.2d 133 (Tex.App.-Austin pet. 377 S.W.2d refd). 1984, (Tex.App.-Eastland pet. refd, filed); Curti untimely see also Tex. Const. lage concept referring is a V, common-law determining § art. whether immediately adjacent sufficient, the area to the home to is must de we activity cide, which the intimate of home life ex considering after all the relevant evi States, 170, dence, tends. Oliver v. 466 against United U.S. whether the is so 180, 1735, 214, great weight 104 S.Ct. 80 L.Ed.2d 225 of (1984). unjust. manifestly evidence as to be See
135 (Tex. State, (Tex.App.- State, 711 842 S.W.2d Meraz v. pet.). no Crim.App.1990). In our review of the evi [1st Dist.] Houston dence, however, jury is are mindful that a follow the we of this are bound to courts state credibility state, judge of the of the exclusive this as that will people will of the of any may reject or all of witnesses expressed by people constitu State, testimony. Penagraph witness’ duly their tion and the laws enacted Op.] [Panel S.W.2d representatives. Id. Further elected 1981). more, expressly legislature autho has appeals to fact review rized courts Having out what view as set cases. Tex.Code questions criminal sufficiency standards for review correct (Vernon Supp. 44.25 art. Crim.Proc.Ann. challenges, we aware that the evidence are that the consti We conclude above disagreement among there is the intermedi statutory provisions provide tutional appellate this about ate courts of state jurisdiction appellate with this Court authority appellate courts whether questions. review fact sufficiency of review the factual the evidence (Tex. in criminal that we cases. Our conclusion 428, 430 Clewis are authorized and even mandated to review agree pet. granted). We App.-Dallas grounded squarely for factual of the Dallas Court with the conclusion *5 Texas It that provides on the Constitution. jurisdiction Appeals that we have to review appeals decisions of courts of be con “shall disagree the questions, but must with fact questions brought on all of fact clusive before that, having holding despite Dallas court’s Const, appeal art. them error.” Tex. in jurisdiction, the standard set out this V, jurisdiction § questions 6. This to review Virginia for v. is the sole standard Jackson applies of law and of fact in civil criminal reviewing sufficiency the to the of evidence Co., Cropper Caterpillar cases. v. Tractor establish the elements of a criminal offense.1 (Tex.1988) 646, (citing 754 S.W.2d 648-49 id. at 439. See (Tex. Smith, 407, Republic v. Dallam 410-11 always has constitutional article been The 1841)). Supreme as interpreted by Texas Court the Recently, Ap the of Dallas Court jurisdiction providing appellate courts over peals concerning has the following written Cropper, at questions. fact See the constitutional mandate: (thorough of from 648-49 discussion cases uphold appel- the appellate right in Texas 1841 to 1988 which of
Intermediate
courts
power
questions).
no
to
to
fact
For
ignore
inherent
an ex-
late courts
review
Queen
existence,
press
v.
the court
criminal
constitutional mandate.
most of its
of
Clewis,
disagree
opinion
merely
1. We
with the Dallas
determina
because the State must
court’s
only
prove
"beyond
does
tion that there
one
its case
a reasonable doubt”
is
standard because
sufficiency
preclude
adoption
holding
reasoning.
the
of a
not
factual
based on unsound
Justice
from
of review different
the minimum
Lagarde,
majority opinion
standard
author of the
in Cle-
wis,
sufficiency
by
legal
dictated
Jackson v.
standard
opines
appellate
that for the
to use a
court
State,
428,
Virginia.
876
See Clewis v.
S.W.2d
less
than
standard
deferential
that established
1994, pet.
granted)
(Tex.App.-Dallas
444
usurp
Virginia
v.
of
Jackson
would
the function
C.J.,
(McGarry,
concurring).
right
jury
the
and violate a criminal defendant’s
that,
by jury.
ignores the
as in
to trial
This
fact
expressed
to
Dallas court
concern
The
cases,
jury
the
criminal
a
in a civil case is also
ground
a
on the
of factual
remand
criminal case
judge
trier
exclusive
of facts and sole
of
insufficiency
concept
jeop-
violates the
of double
witnesses,
credibility
yet
Supreme
of
ardy.
who
Retrial of a defendant
has successful-
right
jury
of Texas
to a
automatically
Court
has reconciled the
ly appealed his
is not
conviction
146,
appeals’ jurisdiction
State,
to
trial with the courts of
prohibited.
785
156
v.
S.W.2d
Meraz
jury findings
sufficiency. See
According
review
for factual
(Tex.Crim.App.1990).
to the United
Co.,
Court,
Cropper Caterpillar
prohibited
S.W.2d
Supreme
Tractor
754
retrial is
under
States
Co.,
646,
(Tex.1988);
only
v. Ford
715
Jeopardy
651
Pool
Motor
cases
the Double
Clause
in those
(Tex. 1986).
Lagarde
legally
S.W.2d
634
Justice
there is
insufficient evidence
where
Florida,
suggests
sufficiency
457
support
also
that a factual
standard
See Tibbs v.
conviction.
31, 42,
incompatible
higher
72
of review is
with the
burden
U.S.
102 S.Ct.
L.Ed.2d
Meraz,
(1982),
at
proof
As
that must be met in criminal trial.
661-62
followed
concurring
by
McGarry
Chief
noted
Justice
in his
appeals
recognized
misconstruction,
has also
ger
the constitutional
cogent parts
certain
provisions granting appellate
jur-
Judge
opinion
courts fact
quoted:
Duncan’s
are
State,
Bigby
71,234,
isdiction.
slip
See
No.
appeals
The court of
is therefore consti-
op. at
WL 595213
tutionally given
authority
to determine
1994).
Nov.
jury
if a
finding
against
great weight
of the evidence and if
As is
majority
evidenced
the extensive
improper
up
this is
people
it is
to the
and concurring opinions in the Clewis deci
the State of Texas to amend the Constitu-
sion,
precise
effect
conelusivity
tion.
[
tion,
in a
“per
determined
footnote that it
];
supra
(Tex.Cr.App.1985)
[709 S.W.2d
*6
ceived no
by
other standard
be utilized”
State, supra
Schuessler v.
320
[719 S.W.2d
Combs,
appeals.
715,
courts of
643
at
S.W.2d
];
State,
(Tex.Cr.App.1986)
v.
Arnold
su-
716 n. 1.
pra
];
(Tex.Cr.App.1986)
[
Criminal Any Versus the reading quoted language Constitution: of the Maey’s Question, The Conelusivity 23 St. makes it obvious that this Court ex- has (1991) (chronicling L.J. 423 struggle pressly recognized this and that the then courts of debate). reviewing Without appeals jurisdiction the numerous civil had the to consid- 1982, decided, cases from great weight when Combs was it preponderance er the and of Judge Moreover, can be said that questions. Duncan’s 1990 Meraz evidence the Court opinion represented away a full-circle turn expressly recognized jurisdiction that such opinion from Combs. The ably exclusively incisive was with the courts of civil viewed the Texas appeals Constitution and the Supreme to the exclusion of the any addition, courts’ roles thereunder.2 To avoid dan- Court. it endorsed the Su- Meraz, issues); judges 2. Even appeals before several on the court courts of to review fact Gold v. appeals willingness of criminal State, indicated a to (Tex.Crim.App.1987) 736 S.W.2d 699 appeals jurisdiction hold that the courts of J., (Teague, dissenting) (asserting that it is time challenges sufficiency to consider of the evidence to the factual authorily appel- to reconsider of the intermediate supporting a criminal conviction. review); perform sufficiency late courts to factual State, e.g., See Moreno v. 870 n. State, (Tex.Crim. Hill v. 203-04 J., (Clinton, (Tex.Crim.App.1988) concurring) 5 J., (Clinton, (Clinton, App.1986) dissenting) (Clinton, Duncan, opinion joined by Judge in an McCormick, joined by Judges Onion and asserted willingness ap- hinted at peals’ to consider courts of permitting appellate that court to reverse convic- authority great constitutional to review being against great weight prepon- tion as and weight preponderance points); and at id. J., (Teague, pro- dissenting) (reiterating derance of evidence would not violate due need to re- authority jeopardy). view issue of constitutional of the cess or double sufficiency challenges, ap- preme interpreted which review factual opinions Court’s V, § pellate Art. in that manner. affirmative defenses. On reviews of capital question, that in mur- Bigby this held considering ... the constitutional ability affect it to factu- appeals amendment did not manner der direct has V, 6,§ portion grants of Art. which ally Bigby, slip op. review criminal cause. authority to conduct a review of factual It that the at 9. also made clear courts evidence, apparent it gener- appeals questions factual are final on observations and conclusions can- Court’s ally. following: The court wrote the not should not be and thus altered is, appeals’ That a court of determination [785 decisis. at constitute stare S.W.2d insufficiency” “against of “factual 155.] great weight ap- the role of Meraz involved courts final in points evidence” of error is crimi- peals reviewing sufficiency the factual cases, by nal an error court on absent proof of the evidence relative to an affirma- applicable law. quite proper- tive defense. Thus the court — ly holding expressed its no —limited clearly slip op. only Id. at 5 n. 3.3 There opinion appeals about the role of courts of logical be reached one conclusion to consis- sufficiency reviewing the of the rel- Bigby: in Meraz and tent with what was said proof ative an to the elements of Y, § grants appeals courts of au- Article Id. at 156. offense. thority to a review of the factual conduct specifically Because Meraz was limited to sufficiency in all of the evidence eases.4 appellate defenses, reviews of affirmative proceed now whether the We determine However, any debate not resolved. legally evidence is sufficient to question appears by to have been answered support the conviction. sweeping decision Texas Court of 71,234 Appeals. Bigby Criminal No. Meraz, (Tex.Crim.App. Nov. Like THE COUNT MARIHUANA
Bigby
challenge
deals with a
factual
evidentiary
against
attack
White’s
finding
an affir-
on
is,
possessing
conviction of
marihuana
as con-
However, nothing
mative defense.
in the
Bigby
attorney
appeal,
*7
again
ceded
his
“weak.”
decision indicates
intent to
limit
holding,
appellate
can
was
to be an owner of the
its
courts
White
shown
3. To
quote
Pool v. Ford Motor
fact.
the
San Antonio
peals
finding
weight
power
points
The courts of
points
ciency
Tex.
Tractor
appear
such a
944,
(Tex.1986); Traylor Goulding,
appeals
S.W.2d at 648.
69
In
Our
place
(1898).
from footnote three:
Supreme
945
662,
civil
have the
Choate,
jurisdiction
to review
of error.
question
is final as to the
of the evidence”
identical to
is final and is not
Co.,
and the Texas
the court's
(Tex. 1973);
house at 306 Walnut which marihuana was White the marihuana as in found. that count of the indictment. charged
When defendant THE substance, COCAINE COUNT5 possession with of a controlled care, prove State must that he exercised Legal Sufficiency control, management or over substance object possessed he knew the he As possession to White’s conviction for State, was contraband. Marable v. 802 deliver, cocaine with intent to White contends 3, 1990, (Tex.App.-Texarkana pet. S.W.2d 5 proof linking there is no him to the tackle d). ref Affirmative links an between accused box, boat, or lot where the cocaine was found. drugs alleged possessed he is to have However, the record indicates White may proved by be circumstantial evidence. was arrested in the field where the cocaine State, 499, Waldon v. 579 501-02 S.W.2d was located. This field was located next to 1979). Op.] [Panel by previ- his home. Police were informed ously reliable confidential informant These affirmative links the follow include in possession forty- White was of cocaine owned, rented, ing: whether the accused eight hours before the search warrant was place police controlled the where found the contraband, in executed. Also seized the search of the whether the accused had conve contraband, previously home were the mentioned mari- nient access to the and whether huana and police plain in related evidence. found contraband view or private in areas to the accused. Edwards v. The cocaine not found in was State, (Tex.App.-Dallas 575 search of the residence but was found 'd). pet. ref Also included is whether door; physical vacant lot next did not White physical proximity the accused inwas close ly possess the cocaine. We therefore must to the contraband. Stokes v. look to affirmative links between the accused (Tex.App.-Tyler 239-40 S.W.2d no contraband; may and the these links be pet.). Waldon, proved by circumstantial evidence. links this case include Affirmative at S.W.2d 502. Possession and control of fact that White resided at the house with exclusive, drugs need not be it be house, police his wife. When searched the persons. shared with one or more Cude large quantities marihuana was found in in State, (Tex.Crim.App. various locations. The marihuana found condition, compressed, ready-to-sell in lea condition, fy, form, bulk in seed and a Cuisi Ironically, many of the reasons chopper/grinder nart Mini-Mate was found urged by maintaining that the State police with marihuana residue in it. A scan unlawfully weigh in cocaine was not seized ner, presumably to listen to law officers’ favor of the view that White was not in *8 conversations, was also there. The officers possession or control of the cocaine. He did $3,700.00 also found A cash. search of the property not own the on which the cocaine earlier, days house about ten when White was found. one to No was shown have present, was also revealed various amounts owned the boat or tackle box in which the of marihuana. in cocaine was found. Those items were However, earlier, presence vacant lot. as indicated open The of marihuana and was obvious, easy, persons and White had convenient ac- White and several other were stand evidence, Walnut, ing cess to it. Based on the on the vacant lot at 310 about we con- legally large clude that the evidence is and factual- sixteen feet from the boat. A amount which, ly support jury’s finding along in sufficient to the that of cash was found the house attorney disposition 5. White's also claims that the trial court alternative cocaine counts. Our improperly accepted jury's guilt moot, the upon verdict of this case makes this contention and possession of cocaine with intent to deliver be- undoubtedly retrial the form of verdict will sub- jury, contrary cause the to the court’s instruc- conditionally. mit the two offenses tions, guilty found White the of both of two to favorable light in the most the evidence paraphernalia police and scan- drug the with conducting review our found, drug prosecution. the consistent with deal- also ner all the sufficiency, we consider knowledge for factual on ing might tend to show judg- Further, and determine whether testimony indicated part. White’s weight and against great is so drug-dealer practice to secrete a ment it was a that mani- as to be place preponderance of the evidence drugs at the “stash” of near but not Meraz, at 155. unjust. festly jury may have inferred they resided. The and the from the circumstances White sufficiently did not The State of the possession and control others shared or was linked either owned show that White Applying standard of cocaine. the Jackson boat, box, lot, or the tackle the vacant to legal- claim that the evidence is review to the found in the tackle box. the cocaine insufficient, viewing ly and after the evidence him at all is connects only evidence which prosecution, to light in the most favorable to execute the the officers arrived that when that a trier of fact could we conclude rational warrant, people other he and several search found the essential elements in is not in the lot. When the accused were beyond crime a reasonable doubt. place where contra control of the exclusive found, he be concluded that it cannot band Sufficiency Factual knowledge of it unless there had and control indicated, reviewing we have As and circumstances independent facts are sufficiency questions of the evidence factual link him to the contraband. Foster which jury that the determines the we are mindful weight credibility and the of the witnesses 1982) Thus, reh’g). Op.] (opinion on [Panel given testimony. Penagraph, 623 be their incriminating assay the circumstan we must however, not, at 348. This case is 5.W.2d Here, produced at trial. Id. tial evidence jury upon called one which however, incriminating evi there is no other credibility weigh testimony. The assess or evidence, conclude Viewing all the we dence. credibility was not of the State’s witnesses care, jury’s finding that White had that the challenged, conflicting testimony was not found in custody, control of the cocaine Thus, jury. presented to the there is little weight against great the vacant lot is so factual likelihood that our evaluation of the as to be of the evidence might of the evidence offend the manifestly unjust. Penagraph admonitions. and, the evi already Because we conclude The facts have been discussed concluding legally dence is insufficient the evidence was count, sufficient, re upon guilty finding the cocaine primarily we did so based a new and remand it for permissible jury inferences and the verse the cause Jackson review, requires trial.6 standard of which us view tendency having any lodged complaint to make
6. White that the trial dence as also consequence admitting is of to the evidence of an extrane existence of fact that court erred probable showing was admitted of the action more ous offense. Evidence determination that, days during probable ten without the evidence. a search of the house about less than it would be earlier, premises, on the and marihua White was TexR .Crim.Evid. that, relevant, although admitted as evi- na was found in the house. This was tending Rule 403 indicates knowledge probative to show that White had if its value is dence be excluded charged presence outweighed by danger of the marihuana he was with substantially of unfair *9 issues, admissibility possessing. misleading The determination prejudice, or confusion delay, the trial court. Jackson within the discretion of or jury, considerations of undue presentation evidence. of cumulative needless 1979). Op.] That determination will not [Panel While evidence of other 403. TexR.Crim.Evid. inadmissible, appeal abuse of reversed on unless a clear generally be be ad- it crimes is State, 711 S.W.2d knowledge, discretion is shown. Wernerv. prove plan, or intent. Tex mitted to (Tex.Crim.App. 404(b). R.Crim.Evid. discretion, provides shown an abuse of White has not Rule of Criminal Evidence 402 Texas upon presume retrial the trial court and we admissible. Evi that all relevant evidence is any evidence is offered will first determine is not relevant is inadmissible. Tex dence which relevant, then, balancing upon request, conduct evi 402. Rule 401 defines relevant R.Crim.Evid. We reverse the of conviction of
cocaine and remand that cause for a new
trial; otherwise we affirm the trial court’s
judgment.
GRANT, Justice, dissenting. respectfully
I portion from dissent sending
this decision the cocaine count back presence
for a new trial. White’s on a vacant people
lot with a number of other is not
evidence that him links to the contraband. owned, showing
There was no that White
rented, place or controlled the where the lot;
drugs although were found on the he door,
owned the house next there was a fence lot;
between it and the vacant there were a
number of people other on the lot at the time arrived; police they were as close to the was; showing
boat as White there was no any way jointly
that he was in connected to people group; activities of these as a view,
drugs plain were not but were in a box,
closed showing tackle thus there was no drugs
that he was aware that the were there. an link
Without affirmative between White drugs, presence
and the his on the lot with possession
others is no
drugs, and I acquittal would order an on the
cocaine count.
Wayne DWYER, Appellant, Carver COMPANY,
SABINE MINING North Corporation,
American Coal Walkovak,
Phillip Appellees. J.
No. 06-94-00025-CV. Texas, Appeals
Court of
Texarkana.
Submitted Oct. 1994.
Decided Nov. 1994.
Rehearing Overruled Dec.
analysis pursuant admitting to Rule 403 before the evidence.