Davis v. State

696 S.W.2d 494, 1985 Tex. App. LEXIS 7188
CourtCourt of Appeals of Texas
DecidedSeptember 11, 1985
DocketNo. 08-84-00290-CR
StatusPublished
Cited by9 cases

This text of 696 S.W.2d 494 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 696 S.W.2d 494, 1985 Tex. App. LEXIS 7188 (Tex. Ct. App. 1985).

Opinion

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a conviction for possession of over fifty pounds but less than two hundred pounds of marihuana. The jury assessed punishment at five years imprisonment and recommended probation. We affirm.

In Ground of Error No. One, Appellant contends that the evidence was insufficient to establish knowing care, management, custody or control over the marihuana. Rodriguez v. State, 635 S.W.2d 552 (Tex.Crim.App.1982); Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App.1979). To prove joint possession, the evidence must establish an affirmative link to the accused to an extent that a reasonable inference arises that he or she knew of the presence and nature of the contraband and exercised care or control over it. Rodriguez at 553.

Appellant’s arguments relating to circumstantial evidence are without merit under current standards of appellate review of sufficiency of the evidence. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). With regard to affirmative linkage, Appellant’s reliance on Rodriguez is misplaced. The evidence in this case is more akin to that presented in Herrera v. State, 561 S.W.2d 175 (Tex.Crim.App.1978) cited for comparison by the Court of Criminal appeals in Rodriguez.

In reviewing the sufficiency of the evidence, we have taken into consideration the testimony of Appellant and his codefendant Cintia Metz at the penalty phase of the trial. Boothe v. State, 474 S.W.2d 219 (Tex.Crim.App.1971). Viewed in a light most favorable to the verdict, the evidence reflected the following: Appellant and Metz were living together in a two-bedroom mobile home in El Paso; their tenancy began on February 3, 1984; based on an informant’s tip, police officers secured a search warrant which they executed on April 3, 1984; when the police entered, no one was present; a strong odor of marihuana was detected immediately upon entry; the officers found ten plastic bags of marihuana weighing five to six pounds each in a closet in the secondary bedroom; the furnishings indicated that the room was not being used as a bedroom; a set of scales was found just outside that closet; in the other bedroom, police located four baggies of marihuana in the top dresser drawer which also contained men’s socks; men’s and women’s clothing was found in the closet in that bedroom; a metal container was found beneath an end table in the living room; the metal container held “roach” clips, rolling papers, pipes and marihuana residue; various receipts and documents indicated both defendants’ names and the address of the mobile home; both Appellant and codefendant Metz testified that the marihuana in the dresser drawer and the paraphernalia in the living room were theirs; both admitted smoking marihuana; both denied knowledge of the large quantity of marihuana found in the closet; Metz testified that her brother had placed it there without her knowledge or consent.

As in both Rodriguez and Herrera, the accused in this case was not present at the time of the search. In Rodriguez, there was minimal evidence of occupancy of the premises and none of control of the premises. Here, as in Herrera, the proof demonstrated not only occupancy but control under lease. The two tenants were charged with joint possession, thus the significance of joint access by them is not detrimental to the State’s case but must be viewed in a light of establishing a double affirmative link. The self-serving statement by Metz as to ownership and deposit of the mari[497]*497huana by her brother was subject to credibility rejection by the jury. There is no other evidence of free access to the mobile home by persons other than the two accused tenants. Despite the factual recitation in Appellant’s brief, no one was present when the officers entered. Within a few minutes, two individuals did approach the trailer, knock on the door and ask for Appellant. There is nothing to indicate they had a key or other access without being admitted from within.

Evidence which would establish affirmative linkage and support a jury rejection of Metz’s exculpatory explanation may be found in the testimonial admissions at the punishment stage. Appellant and the code-fendant admitted joint ownership of the marihuana in the bedroom dresser and the paraphernalia in the living room. Both admitted use of marihuana. They were both, therefore, presumably familiar with the appearance and smell of marihuana. Officer Mijares testified to the pronounced smell which could be detected immediately upon entry. While the large quantity of marihuana was in a partially closed closet, the scales were in plain view outside.

Thus, the affirmative linkage was established by demonstrating control over the premises shared with a codefendant, familiarity with this type of contraband by both codefendant tenants, use of this type of contraband by both, admission of joint ownership of other contraband of the same type and associated paraphernalia in two other locations in the relatively small trailer, a pervasive aroma of the contraband throughout the premises, and location in plain view of the scales, in proximity to the large cache. The evidence was sufficient to support the verdict. Ground of Error No. One is overruled.

In Ground of Error No. Two, Appellant contends that the court erred in refusing to require disclosure of the informant in this case. The identity need not be disclosed unless: 1) the informant participated in the offense; 2) the informant was present at the time of the offense or arrest; 3) the informant was otherwise shown to be a material witness to the offense or to whether the defendant knowingly committed the act charged. Carmouche v. State, 540 S.W.2d 701, 703 (Tex.Crim.App.1976). Appellant relies only upon the last situation as a basis for disclosure. The affidavit indicates that the informant personally observed a quantity of marihuana on the premises described within seventy-two hours preceding April 3, 1984. Appellant was not charged with the offense of possession at the time it was observed by the informant, but rather at the time of seizure on April 3. Further, there is nothing in the record to indicate that the informant was referring to the large cache located in the secondary bedroom which was the basis for the over-fifty-pound charge. For all that can be discerned from the record, the informant was referring to the smaller amount located in the dresser, which was claimed by the Appellant and his codefendant, which may reasonably be presumed to have been for active use by the defendants in connection with the paraphernalia found in the living room and which would logically be the more likely contraband to have been observed by a visiting informer. In any event, Appellant failed to establish that the informant was a material witness to knowing possession of the larger quantity upon which this prosecution is based. In Car-mouche, cited by Appellant, the Court of Criminal Appeals upheld a refusal to order disclosure of an informant who could have arguably testified to knowing possession of a cigar box load of marihuana observed in the defendant’s apartment.

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Bluebook (online)
696 S.W.2d 494, 1985 Tex. App. LEXIS 7188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texapp-1985.