Humason v. State

W.C. DAVIS, Judge,

dissenting.

Today, a majority of this Court concludes that the evidence presented in this case is insufficient to affirmatively link appellant with the contraband discovered in the automobile he was operating. In so doing they have positioned themselves as trier of fact and reversed a case simply because they do not agree with the result. Such action is contrary to our role as an appellate court. In all cases, those supported primarily by direct evidence and those supported primarily by circumstantial evidence, the role of an appellate court reviewing the sufficiency of the evidence is the same — the reviewing court must examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Dickey v. State, 693 S.W.2d 386 (Tex.Cr. App.1984); Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). The “reasonable alternative hypothesis” test is merely a method of effectuating this standard of review when the case is based on circumstantial evidence. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (On Rehearing).

In the instant case the majority has simply substituted its view of the evidence for that of the trier of fact in the trial court. In so doing they have not viewed the evidence in the light most favorable to the verdict, which would require that all conflicts be resolved and all reasonable inferences be drawn in favor of conviction. Rather, the majority reviews the evidence in the light most favorable to acquittal, resolving all conflicts and making all inferences in favor of acquittal.

Sufficient evidence presented in the case affirmatively links appellant with the contraband, ie., appellant was the sole occupant and driver of the vehicle; the athletic bag containing the contraband was next to appellant on the front seat of the vehicle; and the athletic bag was open. The majority concludes from this evidence that, while a rational trier of fact could have found that appellant knowingly exercised actual care, custody and control or management over the contraband, it is just as likely that he did not. It is not within the province of an appellate court to decide if they are convinced of the defendant’s guilt beyond a reasonable doubt. Rather, the standard is whether any rational trier of fact could have reasonably so concluded. In the instant case the majority concludes that a rational trier of fact could have found appellant guilty and that is where the analysis should end. That such a finding can be rationally supported is clear.

In Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981), the defendant was arrested for possession of marihuana while driving with a passenger. At trial the defendant testified that he did not know that any contraband was present in the vehicle and that the automobile was used as a delivery vehicle for his business. The Court listed possible factors which can contribute to a showing of an affirmative link:

When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188 , Tex.Cr.App. [1978].

The affirmative link can be established by showing additional facts and circumstances which indicate the accused’s *371 knowledge and control of the contraband. Norman v. State, 588 S.W.2d 340 , Tex. Cr.App. [1979]. Among such additional facts which can establish the affirmative link are: the marihuana was in open or plain view, Hughes v. State, 612 S.W.2d 581 , Tex.Cr.App. [1981]; the place where the contraband was found was enclosed, Mendoza v. State, 583 S.W.2d 396 , Tex. Cr.App. [1979]; the narcotic was conveniently accessible to the accused, Hahn v. State, 502 S.W.2d 724 , Tex.Cr.App. [1973]; the accused was the owner of the place where the contraband was found, Moulden v. State, 576 S.W.2d 817 , Tex. Cr.App. [1978].; the accused was the driver of the automobile in which the contraband was found, Aldridge v. State, 482 S.W.2d 171 , Tex.Cr.App. [1972]; and the contraband was found in the same side of the car seat as the accused was sitting, [Orosco v. State ] 164 Tex.Cr.R. 257 , 298 S.W.2d 134 [1957].

Deshong, supra, 625 S.W.2d at 329 .

The instant case involves several of the above linking facts: appellant was the driver of the vehicle; the contraband was conveniently accessible to appellant; the contraband was found on the same side of the car seat as appellant; appellant was the sole occupant of the vehicle; and the athletic bag was open and next to appellant. Considering all the circumstances of the instant case I would find the evidence sufficient to affirmatively link appellant to the contraband.

In Harris v. State, 486 S.W.2d 88 (Tex. Cr.App.1972), the defendant was arrested after the police received information that he would be in possession of a controlled substance. The defendant argued that the evidence was insufficient to support his conviction because there was no evidence presented that he owned the automobile and the narcotics were found in the fold of the front seat and were not in open view. The Court concluded that the fact that the defendant was the sole occupant of the vehicle was a significant affirmative link. This, along with evidence that the defendant had been previously seen driving a similar automobile, constituted sufficient evidence to support his conviction. See Harris, supra, 486 S.W.2d at 91 .

In McGaskey v. State, 451 S.W.2d 486 (Tex.Cr.App.1970), the intoxicated defendant was arrested while sitting behind the wheel of a parked vehicle. A subsequent search led to the discovery of a can of marihuana in the closed glove compartment. The Court concluded that, although ownership of the automobile was not shown, the fact that the defendant was found inside the vehicle, intoxicated possibly as a result of marihuana readily accessible to him, was sufficient to affirmatively link him to the contraband. See McGaskey, supra, 451 S.W.2d at 487 .

Finally, in Nickerson v. State, 645 S.W.2d 888 (Tex.App. —Dallas 1983) affd, 660 S.W.2d 825 (Tex.Cr.App.1983), the defendant was stopped for driving a vehicle with an expired inspection sticker. The police observed a plastic bag of marihuana on the floor board of the automobile behind the driver’s seat. The Court held that, exclusive control of the vehicle, furtive gestures toward the contraband made by the defendant, and the possession by the defendant of a handgun and a large sum of money, constituted sufficient evidence to link the defendant with the contraband.

I see no material difference between thése cases and the instant case. They all contain significant affirmative links which when viewed in the light most favorable to the verdict support the underlying conviction. Because the majority substitutes its own judgment for that of the trier of fact, in the face of sufficient evidence linking appellant to the contraband, I respectfully dissent.

ON STATE’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING

State’s motions for rehearing on petitions for discretionary review denied.