Logan v. State

510 S.W.2d 598, 1974 Tex. Crim. App. LEXIS 1737
Court of Criminal Appeals of Texas·Decided June 12, 1974·No. 48067·Published·Cited by 14 cases

Opinions

OPINION

KEITH, Commissioner.

Appellant was convicted of the possession of a narcotic drug, heroin, and the jury assessed his punishment at confinement for life.

After 11 p. m. on May 21, 1970, six Dallas narcotic officers executed a search warrant at a residence located at 2723 Ann Arbor Avenue. Detective Fowler, while walking past a front window of the residence, saw two men in one of the bedrooms, one bending over in front of the other. Barking dogs in the rear of the house prevented the officers from going to the back door so they went directly to the front, knocked, and then broke the door open with a sledge hammer.

As the officers entered the house, two black males ran down a hall into a bedroom, slammed the door and hid in a closet therein. As they were running down the hall, one of the men was holding his trousers to keep them from falling. Detective Fowler testified that the other man, identified as appellant, had a burned spoon in one hand and an eye dropper syringe in the other as he ran down the hall.

The officers immediately removed the two men from the closet, handcuffed them, and searched the closet. In this search, the officers found an eye dropper syringe on the floor which was identified as being similar to the one appellant had in his hand when he entered the closet. Two measuring spoons, one burned and one cleaned, were found on the closet shelf. Officer Fowler testified that the burned spoon resembled that which he saw in appellant’s hand as he was running down the hall. Only one eye dropper syringe and one burned spoon were found in the search of the closet.

Cora Alice Curry was apprehended by the officers as she was running down the hall. While under arrest in the apartment, appellant asked the officers not to take “his wife”, referring to Cora Alice Curry, as she “did not know anything about the stuff being in the bedroom.” One of the exhibits; i. e., “the stuff”, found in the bedroom consisted of seven capsules, one of which was taken to the laboratory for analysis and found to contain heroin, morphine, procaine and methypurline.

The officers also found five pistols and a paper bag containing approximately $1600 in cash in the bedroom mentioned earlier. We also note that when appellant dressed to go to jail he secured his clothing from the bedroom in which the capsules were found by the officers.

It was established by proper scientific proof that heroin-' was in and upon the burned spoon and the syringe found in the closet in which appellant and his companion, Willie Aaron Rogers, were hiding.

Appellant did not testify upon the trial and the only witness called in his behalf was Cora Alice Curry. Appellant does not challenge the sufficiency of the evidence but does contend, by his first ground of error, that the trial court erred in failing to charge the jury upon circumstantial evidence.

Appellant places primary reliance upon Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972); Powell v. State, 494 S.W.2d 575 (Tex.Cr.App.1973), and Farris v. [600]*600State, 496 S.W.2d 55 (Tex.Cr.App.1973). As said in Ramos, supra:

“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.” (478 S.W.2d at 103)

The main fact in the case at bar was appellant’s possession of heroin at the time and place in question;1 and the issue now presented is, did the State prove such possession by direct evidence so that a charge on circumstantial evidence was not required? In Powell, supra (494 S.W.2d at 577), it was held:

“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.”

The police officers’ testimony — as to appellant’s possession of the syringe and the burned spoon, hiding in the closet, the finding of only one syringe and one burned spoon therein when the closet was searched, appellant’s conversation about his wife not knowing of the “stuff” in the bedroom, and the presence of the heroin on the burned spoon and the syringe — is direct evidence establishing appellant possessed heroin.

Furthermore, Cora Alice Curry, a witness for the appellant, testified that appellant “jumped his bond” in this case, going to California where they lived together for some time before he was rearrested and returned to Dallas for trial. Evidence that appellant forfeited his bail bond is clearly admissible to show flight. Dominguiz v. State, 373 S.W.2d 241 (Tex.Cr.App.1963), and cases therein cited. Accord: Guajardo v. State, 378 S.W.2d 853 (Tex.Cr.App.1964); Aguilar v. State, 444 S.W.2d 935 (Tex.Cr.App.1969).

Appellant made no attempt to refute this testimony which came from his own witness, nor was any explanation offered. As stated by Judge Woodley, speaking for the Court in Cawley v. State, 166 Tex.Cr. 37, 310 S.W.2d 340, 342 (1957), “When unexplained, flight has long been deemed indicative of a consciousness of guilt. ‘The wicked flee when no man pursueth * * *.’ Proverbs 28:1.” It is not only some evidence of guilt, but “amounts in effect to a quasi admission of guilt of the offense charged.” Cawley, supra.

Considering the record in its entirety, as we are required to do in passing upon this contention, the facts stated are in such close juxtaposition to each other as to eliminate the necessity of giving a charge on circumstantial evidence. De La O v. State, 373 S.W.2d 501, 503 (Tex.Cr.App.1963); Eason v. State, 423 S.W.2d 315, 317 (Tex.Cr.App.1968); Riggins v. State, 468 S.W.2d 841, 843 (Tex.Cr.App.1971). Indeed, as remarked by Judge Douglas in Riggins, supra, “It would be difficult to imagine that a jury would reach a different result under the facts of this case with or without a charge on circumstantial evidence.” Ground one is overruled.

Our record discloses that appellant tendered Cora Alice Curry as a witness in his behalf notwithstanding the advice of his counsel. She was present at the time of the search and was charged with and pleaded guilty to possession of heroin at the time and place in question. She was then in custody of the Texas Department of Corrections under sentence of two years from the court in which appellant was then being tried.

[601]*601She told of the search by the officers and that appellant and Rogers were present in her house when the officers arrived. She said that the three were in one bedroom when the officers arrived, just talking to one another.

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Logan v. State, 510 S.W.2d 598, 1974 Tex. Crim. App. LEXIS 1737 (Tex. 1974).

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Logan v. State
510 S.W.2d 598 (Court of Criminal Appeals of Texas, 1974)