Doyle v. State

COHEN, Justice,

dissenting.

I agree that the search was not illegal, see Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959), and that Sally Doyle’s control of the car, joined with her admission, proves she knowingly possessed marihuana found in the passenger compartment, which was less than the four ounces alleged in the indictment. Unlike the majority and the court in Baty v. State, 734 S.W.2d 62 (Tex.App.—Dallas 1987, pet. ref’d), I would hold that Sally Doyle’s control of the car and admitted possession of marihuana in the passenger compartment raises an inference from which a rational jury could conclude that Sally Doyle also knowingly possessed the marihuana in the trunk, which weighed more than four ounces. In short, these facts make it more likely that she would also possess marihuana elsewhere in the car. Thus, I would hold the evidence supports Sally Doyle’s conviction, even without considering the unobjected to hearsay statements of the anonymous informant.

Tony Doyle’s case, however, is different. As the majority states, Tony Doyle did not control the car or admit anything, nor does any evidence, except anonymous hearsay, link him to the more than four ounces of marihuana in the trunk. The anonymous hearsay is the only evidence of his guilt, and if that is not sufficient, Tony Doyle’s conviction must be reversed.

Several courts have held that unobjeeted hearsay evidence, standing alone, cannot support a conviction when the declarant unequivocally recants the hearsay in court under oath. Forrest v. State, 769 S.W.2d 298 (Tex.App.—Houston [1st Dist.] 1989 pet. granted); Chambers v. State, 755. S.W.2d 907 (Tex.App.— Houston [1st Dist.] 1988, pet. granted). Fernandez v. State, 755 S.W.2d 220 (Tex.App.—Houston [1st Dist] 1988, pet. granted); Machado v. State, 753 S.W.2d 252 (Tex.App.—Houston [1st Dist.] 1988), pet. ref'd, per curiam, 759 S.W.2d 435 (Tex.Crim.App.1989); Villalon v. State, 739 S.W.2d 450 (Tex.App.—Corpus Christi 1987, pet. granted). In this case, of course, the anonymous declarant did not recant his hearsay declaration in *498 court under oath. He did not testify, and could not have been subpoenaed, because he was unknown to everyone. Despite this difference, the Machado case is instructive.

In Machado, Sofos testified, without hearsay objection, that two men, Williams and “Candy,” told him Machado set a fire. Williams testified, however, that he did not see the fire start and did not know when Machado had left the scene of the fire. This Court stated, “Unobjected to hearsay may be denied probative value for reasons other than its hearsay nature,” and concluded that Sofos’s testimony about Williams’s statement had no probative value because Williams’s own testimony showed that Williams “could not have known from personal knowledge that (Machado) started the fire.” Machado, 753 S.W.2d at 254 .

More pertinent to our present facts, the Machado court also found insufficient So-fos’s further hearsay testimony that “Candy” said Machado started the fire. Like the informant here, “Candy” was known only by his first name and did not testify. Unimpressed, this Court wrote:

Although this evidence may tend to prove that appellant was the person who started the fire, and so has “probative” value, we are unable to conclude that a rational trier of fact could have found that this evidence, even combined with the evidence of appellant’s opportunity to start the fire, was sufficient to exclude every other reasonable hypothesis except that of the guilt of appellant.

Id. at 254.

I recognize that in this case, unlike in Machado, the witness, Officer Massey, personally corroborated several facts stated by his unknown informant, including Tony Doyle’s name, his location, his imminent departure, and the color, make, and license number of the car he would travel in. These corroborated facts, however, do not tend to prove that Tony Doyle controlled the marihuana in the trunk, or that he did so knowingly. They give rise to no inference of guilt, as does, for example, Sally Doyle’s knowing possession of marihuana in the passenger compartment. See Hu-mason v. State, 699 S.W.2d 922 (Tex.App.—Houston [1st Dist.] 1985), aff'd, 728 S.W.2d 363 (Tex.Crim.App.1987).

I do not believe that either Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App.1986), or Texas Rule of Criminal Evidence 802 means that any hearsay evidence admitted without objection automatically has the probative value necessary to support a conviction. As the Villalon court stated, all the nonhearsay evidence in Chambers was consistent with guilt. Villalon, 739 S.W.2d at 454 . Here, there is no nonhear-say testimony of Tony Doyle’s guilt. The sole evidence of Tony Doyle’s guilt is indistinguishable from Candy’s accusation that was held insufficient in Machado. As in Humason, no evidence makes it more likely than not that Tony Doyle knew of the marihuana in the trunk, much less knowingly possessed it. Humason, 728 S.W.2d at 366 . Consequently, I would reverse the judgment and render a judgment of acquittal in the case of Tony Doyle.