Silmon v. State

793 S.W.2d 90, 1990 Tex. App. LEXIS 1661, 1990 WL 97063
CourtCourt of Appeals of Texas
DecidedJuly 10, 1990
DocketNo. 6-89-119-CR
StatusPublished

This text of 793 S.W.2d 90 (Silmon 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
Silmon v. State, 793 S.W.2d 90, 1990 Tex. App. LEXIS 1661, 1990 WL 97063 (Tex. Ct. App. 1990).

Opinion

OPINION

GRANT, Justice.

Vincent C. Silmon appeals his conviction for aggravated possession of a controlled substance. The indictment charged that Silmon did “intentionally and knowingly possess a controlled substance, namely cocaine of less than four hundred grams but [92]*92at least twenty-eight grams.” The indictment also contained an enhancement paragraph for a prior conviction of burglary. The jury found Silmon guilty and assessed punishment at thirty years in the penitentiary.

Silmon was convicted under Article 4476-15, § 4.04(c)1 of the Texas Controlled Substances Act. (The offense was erroneously cited as Article 4476-15, § 4.03 in the indictment and the judgment.) This statute provides that a person commits an offense if he knowingly or intentionally possesses an aggregate weight of twenty-eight grams of cocaine or more. The punishment range under Article 4476-15, § 4.04(d)(1) is between five and ninety-nine years and a fine not to exceed $50,000. Silmon’s punishment was enhanced by a prior conviction of burglary.

Silmon contends that the evidence was insufficient to prove beyond a reasonable doubt that he intentionally and knowingly possessed cocaine.

On April 25, 1989, at approximately 4:00 p.m., police officers executed a search warrant on a home located at 2510 University Street in Marshall, Texas. The house was leased to Michelle Traylor Adams. Upon entering the home, the officers found Sil-mon sitting in a chair in the living room of the house watching television and eating a salad. In the course of the search, they discovered approximately four rocks of crack cocaine on a table in the living room. On the floor under the table, the officers found two more rocks of crack cocaine. The total weight of this cocaine was 1.30 grams. Additional property seized in the living room area consisted of a straight razor blade, a shotgun, a .38 caliber pistol, a portable police scanner, and two handheld walkie talkies.

Silmon was arrested and subsequently searched. The search revealed no contraband on his person and $94.00 in his wallet. After arresting Silmon, the officers searched the entire house. They discovered an additional quantity of crack cocaine in the back bedroom inside a closet, on a top shelf, inside a paper bag which was placed inside another bag. It weighed approximately 31.31 grams, making a total of 32.61 grams of crack cocaine found in the house.

Silmon testified that on August 25, 1989, he went to see Adams to engage in sexual activity, that he gave Adams $30.00 to purchase a bottle of whiskey, that she said she would be back in ten to twenty-five minutes, and that approximately forty minutes later, while he was waiting for her to return, the police arrived. Silmon claims that he never knew the crack cocaine was in the room or in the house.

The standard of review for a challenge to the sufficiency of the evidence is whether, viewed in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989). If there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Butler, 769 S.W.2d 234. The identical standard is applied to sufficiency challenges involving circumstantial evidence cases. Christian v. State, 686 S.W.2d 930 (Tex.Crim.App.1985).

Conflicts in evidence will not call for reversal if there is enough credible testimony to support the conviction. The jury may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions. It is the duty of the jury to pass on the weight of the testimony and the credibility of the witnesses. Losada v. State, 721 S.W.2d 305 (Tex.Crim.App.1986); Tex.Code Crim.Proc.Ann. art. 38.04 (Vernon 1979).

The Court of Criminal Appeals has held that to establish unlawful possession of a controlled substance the State must show (1) that the accused exercised care, control and management over the contraband and (2) that the accused knew the [93]*93matter possessed was contraband. McGoldrick v. State, 682 S.W.2d 573 (Tex.Crim.App.1985). Furthermore, whether the State’s theory is sole or joint possession, 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. Christian, 686 S.W.2d 930.

Where there is an absence of direct evidence that a narcotic was in exclusive possession of an accused, then possession, if any, must be proved by circumstantial evidence. Oaks v. State, 642 S.W.2d 174 (Tex.Crim.App.1982). A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant’s guilt. Bryant v. State, 574 S.W.2d 109 (Tex.Crim.App. [Panel Op.] 1978).

The most damaging testimony against Silmon was that of Michelle Adams. Adams was also charged with possession of cocaine, and as such was an accomplice witness. The jury, however, was not charged that it was required to find sufficient evidence from other sources besides Adams tending to connect Silmon with the commission of the offense. No objection was made to the failure to charge the jury on accomplice testimony, and the omission of such a charge has been held not to be fundamental error. McCloud v. State, 527 S.W.2d 885 (Tex.Crim.App.1975). Under the standard laid down by the court in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), this omission does not constitute egregious harm.

Silmon does not contend on appeal that the evidence is insufficient from other sources besides the accomplice to connect him with the commission of the offense. To view the evidence under a different standard than the jury was instructed to view it would seem to be an unfair evaluation of the jury's verdict. However, the court in Hammonds v. State, 166 Tex.Crim. 499, 316 S.W.2d 423 (App.1958), ruled that a failure to object to the trial court’s omission from the charge that the accomplice witness required corroboration did not preclude the appellate court from reviewing the evidence on that basis. The opinion in the Hammonds

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Williams v. State
498 S.W.2d 340 (Court of Criminal Appeals of Texas, 1973)
Bryant v. State
574 S.W.2d 109 (Court of Criminal Appeals of Texas, 1978)
Butler v. State
769 S.W.2d 234 (Court of Criminal Appeals of Texas, 1989)
Hammonds v. State
316 S.W.2d 423 (Court of Criminal Appeals of Texas, 1958)
Cude v. State
716 S.W.2d 46 (Court of Criminal Appeals of Texas, 1986)
McCloud v. State
527 S.W.2d 885 (Court of Criminal Appeals of Texas, 1975)
Oaks v. State
642 S.W.2d 174 (Court of Criminal Appeals of Texas, 1982)
Christian v. State
686 S.W.2d 930 (Court of Criminal Appeals of Texas, 1985)
Almanza v. State
686 S.W.2d 157 (Court of Criminal Appeals of Texas, 1985)
Losada v. State
721 S.W.2d 305 (Court of Criminal Appeals of Texas, 1986)
Damron v. State
570 S.W.2d 933 (Court of Criminal Appeals of Texas, 1978)
Pollan v. State
612 S.W.2d 594 (Court of Criminal Appeals of Texas, 1981)
Hughes v. State
612 S.W.2d 581 (Court of Criminal Appeals of Texas, 1981)
McGoldrick v. State
682 S.W.2d 573 (Court of Criminal Appeals of Texas, 1985)

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Bluebook (online)
793 S.W.2d 90, 1990 Tex. App. LEXIS 1661, 1990 WL 97063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silmon-v-state-texapp-1990.