Armstrong v. State

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the grounds that the evidence is insufficient to support the conviction.

Officer Juan F. Aguirre testified that four suitcases were carried by Watson and appellant from the taxicab to the plane. When the cab driver offered to help carry the bags appellant said that Watson did not need any help. Officer A1 Castro testified that the seats were removed from the passenger area of the plane. In the two ashtrays behind the pilot seat there were three marihuana cigarette butts or “roaches”. In the right ashtray behind the co-pilot seat there was another “roach”. Officer Saman-iego testified that in three of the suitcases there were sixteen bricks of marihuana and fourteen in the fourth suitcase for a total of sixty-two bricks. The total weight was 127 pounds. The officers testified that they could smell the marihuana in the plane.

Appellant testified that he lived in Maryland and was a flying subcontractor for a company that handled only explosives; that he was a mechanic and a rated pilot, and that he owned the Aztec plane where the marihuana was found. Prior to the date in question he had never been in El Paso. He landed in El Paso some two days before his arrest to refuel. He had no intent of landing there originally. As he landed he was told by the operator that a part of his radar reception equipment was not operating properly and because there would be heavy traffic where he was going he wanted it repaired. He related that he ordered fuel and talked to a man about repairing his equipment. He asked about a Holiday Inn in El Paso. He went to a Holiday Inn and checked the prices and thought he would not stay there but decided he would eat at the Holiday Inn. While he was waiting for a hostess, he and Richard Watson, whom he had never seen before, engaged in conversation and decided to eat together. When appellant told Watson that he was a pilot, Watson told him that he wanted to go to San Francisco and inquired as to the cost of flying in a privately owned aircraft like his. Watson made an agreement to pay appellant approximately four times the commercial rate because Watson stated that he could see the scenery better from a private plane. He agreed to call Watson the next day. Appellant then went to some motel; he did not remember which one but it had a less expensive rate than the Holiday Inn. Appellant related that while he was getting the plane ready on the date in question a taxi pulled up with Watson. Watson had four suitcases and appellant helped carry them to the aircraft. He related that he only carried cargo and that he had never sat anywhere in that area of the plane and had not ridden in the plane except as a pilot or in the front part of the plane; that he had never carried passengers in the back area. He related that Watson never told him that there was marihuana in the suitcases; that he did not smell anything unusual in the suitcases and did not have the faintest idea how the roaches got in the *123 ashtrays. On cross-examination he testified that he was flying from Maryland to El Monte, California; that he came down that far south for better weather, and that he usually went by Pueblo, Colorado or Albuquerque, New Mexico.

The evidence shows that appellant owned the plane; that he did not normally carry passengers; that there were marihuana cigarette butts in the ashtrays of the plane; that there was a strong odor of marihuana coming from the suitcases; and that the suitcases contained a total of 127 pounds of marihuana. Appellant helped carry them and informed the cab driver that they did not need any help. He just happened to meet Watson at a motel dining room and have dinner and Watson wanted to fly in a private plane and look at the scenery and was willing to pay several times the price of a commercial flight.

The evidence should be construed in the light most favorable to the State. Here the appellant owned the plane with the cigarette butts in it; he was on the plane; he was in possession of the plane and in possession of the marihuana. And with all the facts and circumstances in this case the evidence in the opinion of this writer is sufficient to support the conviction. The jury was not bound to believe that appellant knew nothing about the marihuana and cigarette butts in the ashtrays and was not bound to believe that he did not smell marihuana. The jury was not bound to believe any of his testimony. They heard him testify to his story about his flight and why he was there which was off the direct route from Maryland to the Los Angeles area of California. The evidence is sufficient to support the conviction.

A fallacy in the majority opinion is that the State must disprove testimony by a defendant. In most cases a crime is usually committed with as few witnesses present as possible. The majority states that the evidence of presence of the cigarette butts in the plane was “diminished in strength by the unrefuted testimony that others had access to the plane during appellant’s absence.” Is the majority discussing his absence from the plane in Maryland or any other place he might have flown? This reasoning is like one disclaiming marihuana in his automobile because others had access to it. This is a new burden placed on the State to disprove something that is within the knowledge of a defendant — an impossible burden.

From the majority opinion it appears practically useless to charge anyone with possession of marihuana in an aeroplane or other vehicle when he claims others had access to it.

The jury heard the evidence. It heard appellant testify to an unusual set of coincidences and it is requiring the State to disprove such testimony.

The majority is taking something from the proof because the State did not call Watson to the stand. The evidence shows that Watson possessed 127 pounds of marihuana when he arrived in the taxicab. He also exercised control over it and jointly possessed it with appellant. It is reasonable that most people are hesitant to incriminate themselves before their case has been tried. Would the majority require a showing that the witness was called and that he claimed his Fifth Amendment right or have deductions taken from the evidence? The failure to call Watson does not disprove any of the evidence.

The judgment should be affirmed.