Galvan v. State

598 S.W.2d 624, 1979 Tex. Crim. App. LEXIS 1402

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 1979
• Docket: 56544
• Status: Published

Opinions

OPINION

KEITH, Commissioner.

Appellant was indicted for intentional possession of more than four ounces of marihuana; the jury found him to be guilty and his punishment was enhanced because of a prior conviction and fixed at confinement for fifteen years.

Briefly, the record reflects that on April 7,1974, James Hallmark discovered sixteen kilos of a substance later shown to be marihuana. The bricks of marihuana were in a barracks bag, under a tub, in an abandoned shed on his mother’s farm near a house rented to appellant’s father.

Hallmark reported his discovery to Sheriff Bill McGuire of Mitchell County who went to the place where Hallmark had seen the leafy green substance. Without procuring a search warrant or permission of anyone except Hallmark, the sheriff entered the building and seized the marihuana.

It was shown that after appellant had been released on bail he cursed Hallmark on the streets of Sweetwater and said, “ ‘Why didn’t you go up there and tell my dad that you had found this marijuana?’ ”

Elsewhere, the State showed that he told the witnesses Sanford, Cunningham, Teaff, and Butler that Hallmark had cost him a lot of money, a lot of pot. Ricky Sanford testified that “two or three days maybe, after he got busted,” and after he had gotten out of jail, appellant

“ . . . told me, he said, that he had some weed, and that the marijuana was his. And he also said that he would get James Hallmark, or somebody, to shoot that bastard, for finding his weed.”

Cynthia Butler, aged 17 at the time of trial, testified that appellant told her that he was “going to get James Hallmark for turning it [the pot] in.” Appellant did not testify upon the trial nor was there a written confession offered by the State.

The second ground of error complains of the admission of the results of the search and seizure of the marihuana, the contention being that it was the result of an illegal search. We disagree. As noted earlier, the shed where the contraband was found was an abandoned tractor shed on a portion of the farm being rented by Hallmark’s mother to appellant’s father. Hallmark had some of his personal belongings in the shed as did his mother. There is no showing that appellant had any right to be in or to store anything in the shed. He was not present at the time of the search.

It was said in Stiggers v. State, 506 S.W.2d 609, 611 (Tex.Cr.App.1974):

“Here, the premises were not under the control of appellant and he was not present when the search was made. . Appellant has no standing to question the legality of the search of premises not under his control when he was not present at the time of the search. Schepps v. State, 432 S.W.2d 926 (Tex.Cr. App.1968).”

Ground two is overruled.

There was no direct testimony introduced which linked appellant to the marihuana found in the shed except the several admissions (and threats) which appellant was quoted as having made. Assuming, arguen-do, the sufficiency of such evidence to raise an issue of possession, we turn now to appellant’s third ground of error reading: “The trial court erred in failing to properly instruct the jury on circumstantial evidence by omitting from such instruction the words ‘and no other person.’ ”

The trial court’s instruction on circumstantial evidence was in standard boiler plate language except for the omission noted above. A timely and proper objection was made to this omission from the instruction and appellant contends that his conviction cannot stand under the record. We agree for the reasons now to be stated.

As was said in Ramos v. State, 478 S.W.2d 102, 103 (Tex.Cr.App.1972):

“Where an accused is charged with the unlawful possession of a narcotic drug, two elements must be proven: (1) that he exercised care, control, and management over the contraband; and (2) that he knew that the object he possessed was contraband.”

As in Ramos, the shed was open and had no lock. It was shown that Hallmark, the sheriff and probably others had no difficulty in gaining admittance thereto. In Ramos, the Court found that it was error for the trial court to refuse a charge on lack of knowledge of the presence of the contraband, and continued: “This error was compounded when the trial court also refused appellant’s requested charge on circumstantial evidence.” (Id. at 105) This language from Ramos is likewise material:

“The distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proven, [citations omitted]

“In the case at bar, no witness saw appellant exercise any control over the contraband. Nor was the contraband found within appellant’s residence, where he would have had sole access to it. Instead, the marihuana was found at a place on appellant’s property which was accessible to anyone.” (Id.)

See also Oliver v. State, 551 S.W.2d 346, 350 (Tex.Cr.App.1977); Williams v. State, 521 S.W.2d 275, 276 (Tex.Cr.App.1975); Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623, 625 (Tex.Cr.App.1962).

State’s counsel seeks to uphold the omission of the quoted language by reliance upon two cases:¹ Odell v. State, 95 Tex. Cr.R. 360, 254 S.W. 977, 978 (1923), and Grego v. State, 456 S.W.2d 123, 126 (Tex.Cr. App.1970). Neither case is in point. As noted in Odell, supra:

“When there is evidence supporting a theory that the accused and others committed the offense, it would be an error against the state for the court to instruct the jury that they must believe to a reasonable and moral certainty that the accused ‘and no other person’ committed the offense.” (emphasis supplied)

This language from Odell was quoted in Grego, supra.

The State makes no contention that others were involved in the possession of the contraband. Indeed, under its theory of the case it could discharge its burden of establishing the guilt of appellant only by showing that he, and no other person, had possession of the marihuana. Ramos, supra. The omission of the quoted words “and no other person” from the charge significantly affected appellant’s rights and constituted reversible error.

The judgment of the trial court is reversed and the cause is remanded.

Before the court en banc.

1 . Upon oral submission of the cause, State’s counsel called our attention to language found in Herrera v. State, 561 S.W.2d 175, 179 (Tex. Cr.App.1978). The fact structure of the two cases is so different that we do not find the holding in Herrera to be applicable to the case at bar.