McCreight v. State

720 S.W.2d 582, 1986 Tex. App. LEXIS 9299
CourtCourt of Appeals of Texas
DecidedSeptember 24, 1986
DocketNo. 04-85-00404-CR
StatusPublished
Cited by2 cases

This text of 720 S.W.2d 582 (McCreight 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
McCreight v. State, 720 S.W.2d 582, 1986 Tex. App. LEXIS 9299 (Tex. Ct. App. 1986).

Opinion

OPINION

BUTTS, Justice.

Appeal is taken from conviction for possession of methamphetamine, TEX.REV. CIV.STAT.ANN. art. 4476-15 § 4.02 (Vernon 1976 and Supp.1986). After a jury found appellant guilty of the offense, it assessed punishment at seven years imprisonment and $5,000.00 fine.

Appellant raises six grounds of error. We address only two in our disposition of the case. These are that the evidence was insufficient to sustain appellant’s conviction for possession of methamphetamine and that it was error for the court not to exclude certain statements made by appellant.

We agree that the evidence is insufficient to prove possession in this case. The evidence shows that on January 14, 1986 two San Antonio Police Department detectives, armed with a search warrant, had under surveillance a night club which featured nude dancing. They waited until appellant arrived at 2:00 P.M. and served the warrant. The place to be searched for methamphetamine was “Dirty Sally’s,” which opened for business (nude dancing but no liquor sold) from 8:00 P.M. until 4:00 A.M. The search was based on a tip from an unnamed informant, the allegation in the affidavit being that the informant had seen methamphetamine possessed by the appellant the day before “at the above described premises.”

The premises consisted of a one-story building to which had been added a loft-type upstairs. Appellant was the owner of the night club as well as the owner of Quik-Tow, a business which faced on the Austin Highway. There was some testimony that he had other business interests and [584]*584had his office for all these in his apartment, located in an apartment complex away from these premises.

The stairs led only to the office of “Dirty Sally’s.” The bartender testified the office was used by the manager and himself to “count the money” after 4:00 A.M. each morning. He said the manager, who had the combination to the safe located there, put receipts in the safe. He said the manager, the custodian, and appellant all had keys to the office. He stated that appellant often was not at the club. He also testified that the club hired many transient dancers who would work only a day or two and then “move on.” In describing the upstairs portion which was about 15 feet by 22 feet, he said it had a shower which the dancers used, and that they kept some of their costumes there and had access to the room during night club hours.

The manager, a woman, said she ran the club “completely” and supervised the dancers. She also confirmed they used the room for changing clothes, shampooing and styling their hair, eating, and making-up for the shows. She explained there was no other shower in the club and that the downstairs dressing room was very small and was inadequate for changing clothes. She said the girls changed costumes during their three “numbers” behind the stage curtain. In addition, the loft office apparently had an air conditioner which the other room did not. She said the office was used as a lounge by the girls. She confirmed there were transient dancers who did not stay long. They usually had four “permanent” dancers and all had access to the room during club hours.

The manager testified that no money was kept out anywhere during business hours. When she and the bartender finished their bookkeeping after 4:00 A.M. the office was always locked. She had a key and she would lock the door. She testified she used the desk in the office, putting envelopes with the girls’ money in the drawer and sometimes the “rent” money in an envelope which appellant would retrieve. She kept her office supplies in the desk. She said she, the appellant, and the custodian all had keys to the room.

The doorman, whose job it was to “screen” those entering the club, said he took breaks upstairs. During those few minutes he would use the TV monitor which was focused on the door to see who entered. He said the office was “nobody’s,” and the club’s paperwork was done there by the manager. The desk was used for that work and for counting money. The girls often took showers there because they got “sweaty” dancing. The area was not locked during business hours; it was “a common area.” He said he had access to the desk area as did the others. He named the same three people who had keys to the office.

Two dancers testified. One not only danced but was a parttime secretary, sometimes helping at the club. She said the door to the office was not locked during club hours. The girls kept their clothes there, and “everybody” used the showers. There were usually six to eight dancers. The other dancer, married to appellant, corroborated what the others had said and referred to the small space as an “employees lounge.” She said the girls kept aspirin, Tylenol, Midol and other pills in the office. She said there were six dancers in January. She said that appellant had always kept his main business office in a different location. She also said the office was locked only after the night money was counted.

When arrested, appellant had opened the office door and was standing with his back to the detective who served the warrant. That officer sat with appellant on a couch while the second detective searched. He went immediately to the unlocked desk in the cluttered room and opened the middle drawer, removing from it a plastic package containing 0.031 grams of methamphetamine. During the 30 to 45 minutes period they were in the office, appellant talked, as one officer said, continually and “on his own.” He appeared nervous. Both officers denied questioning him. The Miranda warnings had been adminis[585]*585tered as soon as he was placed under arrest.

It is those statements which the State relied to prove possession. Appellant argues admission of the oral statements violates TEX.CODE CRIM.PROC.ANN. § 38.-22 § 5 (Vernon 1979), since they were not admissible to prove guilt but only for the purpose of impeachment. We find the statements did not result from interrogation; appellant was simply talking in a nervous manner. Section 5 would not limit the admissibility of the statements for the purpose of impeachment only. Chambliss v. State, 647 S.W.2d 257, 262 (Tex.Crim.App.1983). The sixth point of error is overruled.

POSSESSION

To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, custody, control, or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Sinor v. State, 612 S.W.2d 591, 592 (Tex.Crim.App. 1981) (citations omitted). There may be both sole and joint possession. Id. at 593. In the present case the State sought to prove sole possession by appellant.

In either situation the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. Id. (citations omitted). This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Id. (citations omitted).

When there is an absence of direct evidence that an accused was in exclusive possession of contraband, then possession, if any, must be proven by circumstantial evidence. Oaks v. State,

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Cite This Page — Counsel Stack

Bluebook (online)
720 S.W.2d 582, 1986 Tex. App. LEXIS 9299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccreight-v-state-texapp-1986.