Marsh v. State

630 S.W.2d 305, 1981 Tex. App. LEXIS 4615
CourtCourt of Appeals of Texas
DecidedDecember 31, 1981
DocketNo. 01-81-0011-CR
StatusPublished
Cited by4 cases

This text of 630 S.W.2d 305 (Marsh 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
Marsh v. State, 630 S.W.2d 305, 1981 Tex. App. LEXIS 4615 (Tex. Ct. App. 1981).

Opinion

WARREN, Justice.

The jury found appellant guilty of the felony offense of possession of marihuana and assessed his punishment at confinement in the Texas Department of Corrections for 10 years and a fine of $5,000.

On the evening of March 27, 1978, Texas Ranger Ray Scholton was trotline fishing with his wife on the 4444 Ranch in Fort Bend County, Texas. Scholton had an agreement with the owner of the ranch that he could fish on the ranch if he protected the property from “trespassers, eattlerust-lers, and other people.” The owner had not told Scholton that a car, pick-up, or airplane would be on or around the ranch property the night of March 27, 1978.

Scholton testified that at around midnight he saw “vehicles and subjects” moving around a grass landing strip on the ranch. He approached the area until he was 100-200 yards from the activity and he saw a pick-up truck with a camper and a light colored Cadillac. He left the ranch and went two miles to Simonton, where he telephoned the Fort Bend Sheriff’s Department. He went back down Guyler Road to the outskirts of the ranch, pulled off the road, and turned off his lights. After staying in place for 2-3 minutes, Scholton saw the two vehicles near the landing strip and an airplane circling low overhead.

He left a second time and drove 4 miles to Wallis, Texas; here he phoned Fort Bend County Deputy Sheriff Larry Lee, a resident of Wallis. In Wallis, he exchanged his private vehicle for his unmarked Texas Ranger automobile which was equipped with a police radio. At around 2:00 a.m., March 28, Scholton and Deputy Lee met at Barney’s Store at the intersection of Guyler Road and FM 1093, about 2 miles from the ranch. Scholton’s wife was still with them. The three of them, in Scholton’s auto, went back down Guyler Road toward the ranch and parked by an abandoned church with their lights off. Scholton stated it was then that they saw the two vehicles coming up Guyler Road where the ranch merges into Guyler Road. The two vehicles passed the Scholton vehicle heading north on FM 1093.

With his lights off, Scholton followed the pick-up and Cadillac east on Highway 1093 through Simonton, Texas into Fulshear, Texas. At Fulshear, the Cadillac continued east on FM 1093 toward Houston while the pick-up turned north on FM 359 toward Brookshire. He testified that at this point he was trying to contact by radio a marked police car to stop both vehicles. About one mile north of Fulshear, the pick-up pulled over and stopped. Testimony for the State showed that Scholton did nothing to cause the pick-up to stop. Testimony for appellant Marsh indicates that the pick-up [307]*307stopped because the officers flashed their lights. The position of appellant is that the officers stopped the vehicle. After the pick-up stopped, testimony is undisputed that Scholton approached the vehicle with a rifle in his hands. Scholton states he did so because, “it was 2 a.m. in the morning and I was concerned about the personal safety of myself, my wife, and Deputy Lee.”

Scholton further testified that Marsh then got out of the driver’s side, and that another man and two women were in the pick-up. Scholton ordered all four out of the truck to a position where he could watch them. He stated that he did not know how many people were in the pick-up and camper. Appellant produced no identification. Scholton stated that through the window of the truck, he saw a tarpaulin covering some type of cargo. He specified that for his own safety he looked in the back window and felt that there was contraband inside. He then testified that after the tarpaulin had been lifted, he recognized the distinctive smell of unburned marihuana.

Deputy Lee stated that they took no affirmative action in stopping the pick-up. He said that he did not know how many people were in the truck, and that neither he nor Scholton and his wife had on uniforms to identify them as officers. Lee stated that after the truck stopped, he and Scholton approached it cautiously and with their guns drawn. Lee further testified that as he came within arms length of the rear corner of the truck, he noticed the strong smell of raw marihuana coming from the back of the pick-up.

After all four parties had gotten out of the truck, the camper was opened and six bales of marihuana (found to weigh 319 pounds and S ounces) were discovered.

Appellant and his companions were arrested for possession of marihuana and taken to the Fort Bend County Jail.

Appellant asserts: (1) a violation of the Speedy Trial Act; (2) an unlawful search and seizure; (3) insufficient evidence to find him guilty of possession; and (4) error in admitting reputation testimony from four police officers.

Appellant’s first contention, that the State failed to comply with the Speedy Trial Act, is without merit. The act became effective on July 1, 1978. The State announced ready for trial on September 11, 1978 and again on October 9, 1978. An announcement of ready by the State within 120 days from the effective date of the Speedy Trial Act is a prima facie showing of compliance with the act. Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979). Although the case was not tried until October 22, 1979, the delays appear to be attributable to the demands of other court cases. This would not entitle defendant to dismissal under the Speedy Trial Act and his ground asserting violation of the Speedy Trial Act is overruled.

Appellant next complains that the evidence is insufficient to support a finding that he was in possession of marihuana. We will review the evidence in the light most favorable to the verdict. Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976).

Testimony is uncontradicted that appellant was driving the vehicle. Testimony further shows that this pick-up had been seen earlier on the ranch near the landing strip. Scholton, Lee, and Scholton’s wife followed the truck until it stopped on FM 359. Scholton testified that appellant unlocked the camper and asked that his rights be read to him before opening the camper. Earlier, he told Scholton that the pick-up was carrying feed and when first asked, appellant refused to open the back end. He also asked Scholton if he had a search warrant. After opening the camper, Scholton stated that there were no feed bags but six bales of raw marihuana. Deputy Lee said that he could smell the marihuana before the camper top was ever opened, and Schol-ton said that he smelled it when the top was opened. Department of Public Safety Chemist Dennis Ramsey testified that raw marihuana has a distinctive smell and that this odor would be noticeable while driving a pick-up truck with marihuana in a covered camper.

[308]*308Appellant cites Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978) in which Underwood’s conviction of possession of marihuana was reversed on appeal because, “the mere presence of the defendant in the house where prohibited items were found, standing alone, was insufficient to show possession and sustain conviction.” The amount of marihuana found in Underwood was between 17 and 21 ounces; Underwood did not own, rent, live in or have any substantial link with the house; none of his possessions were found in the house; he had no marihuana on him; officers testified he apparently had not smoked any marihuana nor had he made any furtive gestures.

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Related

Marsh v. State
684 S.W.2d 676 (Court of Criminal Appeals of Texas, 1984)
Helton v. State
635 S.W.2d 824 (Court of Appeals of Texas, 1982)

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Bluebook (online)
630 S.W.2d 305, 1981 Tex. App. LEXIS 4615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-state-texapp-1981.