Humason v. State

EVANS, Chief Justice,

dissenting.

I agree with the majority that the State was required to prove: (1) that the appellant exercised care, control, and management over the controlled substance and (2) that he knew that it was contraband. But I disagree with the majority’s conclusion that the State’s evidence is not sufficient to *925 prove that the appellant knew he possessed an illegal drug.

The majority opinion fails to distinguish the facts in this case from those situations where an accused was not shown to have been in exclusive possession of the place where the substance was found. I recognize that in the absence of proof of exclusive possession, the State must prove “additional independent facts and circumstances” that affirmatively link the accused to the contraband. See Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Wiersing v. State, 571 S.W.2d 188, 190 (Tex.Crim.App.1978).

In the present case, the State did prove that the appellant had exclusive possession of the place where the controlled substance was found. The State proved such “exclusive possession” by showing that the appellant was the sole occupant and driver of the vehicle, and that the bag containing the illegal drug was located inside the vehicle on the seat next to him. See Duncan v. State, 680 S.W.2d 555, 560 (Tex.App.—Tyler 1984, no pet.). Although there was no direct evidence that the appellant exercised control over the bag or its contents, the circumstantial proof of his exclusive possession of the vehicle and its contents was sufficient to raise a fact issue for the trier of fact. See McGaskey v. State, 451 S.W.2d 486, 487 (Tex.Crim.App.1970).

The bag containing the cocaine was conveniently placed next to the appellant in the front seat of the vehicle, making its contents readily accessible to him. The trial court was entitled, as a matter of common experience, to consider that persons operating motor vehicles often place their personal effects on the seat next to them while driving. Indeed, that would have been the most logical place for the appellant to have placed the bag, if he had desired ready access to its contents. See Orosco v. State, 164 Tex.Crim. 257 , 298 S.W.2d 134 (1957); Boughton v. State, 643 S.W.2d 147, 149 (Tex.App.—Fort Worth 1982, no pet.).

Based on the proof showing the appellant’s exclusive possession of the place where the illegal substance was found, the trial court was entitled to conclude that the appellant had knowledge of the existence of the illegal drug. See Deshong, 625 S.W.2d at 329 . The proof of appellant’s exclusive possession, in itself, established the necessary link between the appellant and the contraband, and the State was not required to show any of the “additional links” listed in the majority opinion.

The majority opinion cites three cases in support of its conclusion that the State’s proof failed to affirmatively link appellant to the cocaine in a manner proving that he knowingly possessed it. Reyes v. State, 575 S.W.2d 38 (Tex.Crim.App.1979); Presswood v. State, 548 S.W.2d 398 (Tex.Crim.App.1977); Baltazar v. State, 638 S.W.2d 130 (Tex.App.—Corpus Christi 1982, no pet.). I do not believe those cases are applicable because all three involved nonexclusive possession of the contraband.

In Presswood , the illegal drug was found wrapped in a bank bag in the glove compartment of an automobile occupied by the defendant and his passenger. There was no evidence, direct or circumstantial, linking the defendant to the drug, except that he was the driver of the vehicle.

In Reyes , the defendant was a passenger in a four-wheel-drive vehicle carrying bulk marijuana in the rear section. Because there was no partition between the passenger compartment and the rear of the vehicle, the State contended that the close proximity of the accused to the contraband was sufficient to establish his joint possession.

In Baltazar , the accused and his female passenger were stopped for investigation. After the accused was placed under arrest for possession of gambling paraphernalia, the police impounded the vehicle and subsequently found cocaine in an envelope in a kleenex box on the dashboard. The only evidence tending to link the defendant to the cocaine was the fact that it was found on the dashboard of the vehicle, a place readily accessible to the accused.

In the three cases cited by the majority that involved a single occupant, the convic *926 tions were affirmed. Harris v. State, 486 S.W.2d 88, 91 (Tex.Crim.App.1972); McGaskey v. State, 451 S.W.2d 486 (Tex.Crim.App.1970); Nickerson v. State, 645 S.W.2d 888, 892 (Tex.App.—Dallas), aff 'd, 660 S.W.2d 825 (Tex.Crim.App.1983); see also Boughton v. State, 643 S.W.2d 147 . I recognize that the court, in affirming the conviction in Nickerson, discussed additional circumstances that linked the defendant to-the contraband. But the court did not state that evidence of exclusive possession could not, standing alone, be a sufficient basis for sustaining the conviction.

In Harris , the defendant argued, as appellant does here, that the evidence was insufficient to support his conviction because (a) there was no testimony showing that he owned the automobile, and (b) the narcotics had been found in the fold of the front seat and were not in open view. «He also pointed to defense testimony that he owned a different make of car than the automobile in which the narcotics were found. Rejecting the defendant’s contentions, the Court of Criminal Appeals held that the evidence was sufficient to support the conviction, concluding that the facts relating to the defendant’s sole occupancy of the vehicle negated the possibility that someone else had placed the contraband in the car. Harris v. State, 486 S.W.2d at 91 .

In my opinion, the State’s proof established that the appellant had exclusive possession of the place where the controlled substance was found, and that this constituted sufficient evidence to support the trial court’s determination that the appellant knowingly possessed the illegal drug.

I would affirm the trial court’s judgment.