Duff v. State

546 S.W.2d 283, 1977 Tex. Crim. App. LEXIS 935

• Court: Court of Criminal Appeals of Texas
• Decided: January 19, 1977
• Docket: 51681
• Status: Published

Opinions

PHILLIPS, Judge,

dissenting on appellant’s motion for rehearing.

I disagree with the majority’s conclusion that the conflict between the appellants’ stories is a strong circumstance implying guilt and when it is coupled with the strong odor of marihuana in the presence of what appeared to be marihuana seeds on the floor of the vehicle, the evidence is sufficient to link the passenger-appellant Pend-ley with the marihuana.

In Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127, cited by the majority, it was noted that to establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband and (2) that the accused knew the matter possessed was contraband. In the instant case the State has failed to meet the second prong of this test.

The majority attempts to link the passenger-appellant with the marihuana by “independent facts and circumstances” in addition to his mere presence in Duff’s automobile. I disagree with the manner in which the majority has interpreted these facts. The majority appears to attach significance to the conflicting statements given by Duff and Pendley: Officer Schmidt testified that Duff stated that Pendley had come to Austin with him from Corpus Christi, whereas Pendley told him that he was a hitchhiker whom Duff had picked up outside of Austin. However, these conflicting statements cannot be equated with the passenger’s knowledge that his driver is carrying marihuana in the back seat or trunk.

There was additional testimony from Officer Schmidt that he observed the strong smell of marihuana in the ear; however, we cannot impute a knowledge of the smell of marihuana to Pendley, who did not have the benefit of Schmidt’s police academy training. See Armstrong v. State, Tex.Cr.App., 542 S.W.2d 119. Similarly, there was a conflict in testimony about the presence of marihuana seeds on the floorboard of the car. Once again we are unable to assume Pendley would recognize the seeds as marihuana if they were, in fact, there.

The majority cites to Sanders v. State, 482 S.W.2d 649, to illustrate circumstances which show the necessary affirmative link between a passenger-defendant and the marihuana. In Sanders the passenger signed a form abandoning any claim to marihuana seeds and debris found in his baggage pursuant to a border search of both the car and his personal effects. Several hours later, the passenger was in the car when it was searched 140 miles from the border and three Mexican flour sacks filled with marihuana were found in the trunk. Sanders is distinguishable from the instant case in several respects. The fact that the passenger in Sanders had some marihuana debris in his suitcase tends to support a presumption that he had some familiarity with the substance. Therefore, it is not unreasonable to assume he may have recognized the sprig of marihuana which was later found on the right front floorboard of the car. Additionally, the circumstantial evidence in Sanders tends to show that the passenger was present when the marihuana was placed in the automobile trunk, since he had been present at the earlier search when none was found. In the instant case, there is nothing to show when the marihuana was placed in the car, even assuming Pendley had come from Corpus Christi that day.

The instant case turns on a “close” fact situation and is more in line with our decisions in Harvey v. State, Tex.Cr.App., 487 S.W.2d 75, and Taylor v. State, Tex.Cr.App., 505 S.W.2d 927, cited by the majority. Accordingly, I would reverse the judgment of the trial court as to appellant Pendley and remand the cause.

ROBERTS, J., joins in this dissent.