Whitaker v. State

660 S.W.2d 615, 1983 Tex. App. LEXIS 5709
CourtCourt of Appeals of Texas
DecidedNovember 3, 1983
DocketNo. 13-81-295-CR
StatusPublished
Cited by4 cases

This text of 660 S.W.2d 615 (Whitaker 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
Whitaker v. State, 660 S.W.2d 615, 1983 Tex. App. LEXIS 5709 (Tex. Ct. App. 1983).

Opinion

OPINION

UTTER, Justice.

In a jury trial, appellant was convicted of possession of methamphetamine. Punishment was assessed by the court at six years probation and a $1,000.00 fine. We previously sustained appellant’s first ground of error, in which he contended that the trial court erred by allowing him no more than approximately fifty minutes to conduct individual questioning of some thirty-two panel members. The Court of Criminal Appeals, 653 S.W.2d 781, reversed our decision, however, and remanded the case back to this Court for consideration of appellant’s other grounds of error. Issues to be discussed include (1) whether the evidence was sufficient to support appellant’s conviction; (2) whether the evidence justified jury instructions on the law of parties; (3) whether a charge on parties was improperly included within a circumstantial evidence charge; (4) whether the court’s charge on circumstantial evidence was properly given; and, (5) whether the jury should have been instructed that appellant’s mere presence where contraband is found was insufficient to establish his possession of the contraband. We overrule appellant’s grounds of error and affirm the judgment of the trial court.

In his second ground of error appellant contends that the evidence was insufficient to sustain his conviction.

Evidence adduced at trial established that appellant’s name had been signed to an application to rent an apartment and to the subsequent Apartment Lease Contract at the location of this offense. The validity of the signature is not contested. Another name, in the same handwriting, was also listed under “other occupants” on the application.

Officer Robert Fleming of the Houston Police Department testified that he was working at another job as security for Oak Tree Apartments. His duties included being subject to call for “anything that requires police action.” Officer Fleming further testified that on August 28, 1979, he knocked on appellant’s door to return his dog; that the door was opened about 10 inches so that he could see four people in the room; that a pistol was beside one of the persons in the room; that he observed a table on which there were hypodermic syringes, a mirror, several packets of white powder, a spoon, an ash tray, and a couple of candles; that in his nine years experience as a police officer he had had occasion [617]*617to see items later found to be contraband so packaged; and that he then immediately moved inside the apartment and arrested the four people in the room.

After he had “secured the scene”, appellant heard someone in the far bedroom or bathroom of the two-bedroom apartment, and directed the people he had placed under arrest to call out for the other person to reveal himself. Officer Fleming heard the person moving in the back part of the house. About a minute later, appellant emerged. After other police officers arrived, appellant signed a “Consent to Search Form.” The search of the apartment revealed, inter alia, two plastic bags containing methamphetamine in the bathroom. One bag was underneath an overturned ash tray on top of the commode tank; the other bag was inside the commode tank, which had water in it. The powder inside both bags had “clumped together kind of in a glob from the moisture.” Standing water lay beside the bag that had been placed underneath the ash tray, and the bag itself was also wet. Testimony was adduced that the normal state of methamphetamine when in such bags was “in a white crystaline [sic] powder form that can be either snorted or injected.” One of the police officers testified that appellant appeared to be under the influence of narcotics. The jury was charged that they could find appellant guilty if they found that he intentionally and knowingly possessed methamphetamine.

In Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976) the court stated as follows:

“To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband.” [citations omitted],

Appellant’s intent to promote and assist the commission of the offense may be inferred from his acts. Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1977). However, there must be evidence showing either directly or circumstantially that appellant knew or should have known of the presence of the contraband. Hahn v. State, 502 S.W.2d 724 (Tex.Cr.App.1973).

We hold that the previously cited evidence, especially considering the open use and access of the contraband, clearly shows that appellant must be charged with knowledge of the contraband. Whether appellant was properly charged with control of the contraband is, however, a closer question.

Appellant contends that the case of Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973) “is directly on all fours” with the case now before us. In Williams, police officers entered a trailer home pursuant to a search warrant which stated that the defendant and a number of other persons were staying at the trailer. The officers executed their search at 1:00 a.m. Several people were found in a living room area; the defendant was in the kitchen area. The search revealed heroin in one of the bedrooms. Appellant was observed to have needle marks on an “undetermined age” on his left arm. The defendant’s conviction for possession of heroin was reversed because, the court noted, the evidence showed “at most” that: (1) the defendant did not personally possess narcotics; (2) appellant was not in exclusive possession of the trailer; (3) “close proximity” was not shown because the narcotics were in one bedroom and the defendant was in the kitchen; (4) the needle marks on the defendant’s arm were not shown to be recent; and, (5) the only evidence that appellant occupied the premises were the facts (a) that the utility bills were in his name and (b) that he was present.

In the case before us, contraband was displayed openly in the living room. The circumstances underlying the discovery of the methamphetamine in the bathroom supply the affirmative, if circumstantial, links to appellant; certainly the jury was justified in believing that, beyond a reasonable doubt, appellant attempted to dispose of the methamphetamine under his control. Hernandez v. State, supra. We find the [618]*618evidence sufficient to support appellant’s conviction, and therefore overrule his second ground of error.

Appellant’s other grounds of error all assert errors in the court’s charge to the jury. In his third ground of error appellant contends that the trial court erred “by instructing the jury on the law of parties when same was not raised by the evidence.”

A defendant may properly be found guilty as a party if he is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement.

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Related

Lewis v. State
856 S.W.2d 271 (Court of Appeals of Texas, 1993)
Giddings v. State
816 S.W.2d 538 (Court of Appeals of Texas, 1992)
Cameron v. State
703 S.W.2d 254 (Court of Appeals of Texas, 1985)

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Bluebook (online)
660 S.W.2d 615, 1983 Tex. App. LEXIS 5709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitaker-v-state-texapp-1983.