# Galvan v. State

> Court of Criminal Appeals of Texas · April 18, 1979 · 598 S.W.2d 624

URL: https://www.frixlaw.com/law-library/cases/9773112

## Case

- **Full name:** Lupe GALVAN, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 18, 1979
- **Citations:** 598 S.W.2d 624; 1979 Tex. Crim. App. LEXIS 1402
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Clinton, Douglas, Onion, Phillips, Davis, Keith, Dally
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773112

## Opinion text

DOUGLAS, Judge,
dissenting.
The majority opinion overrules the State’s motion for rehearing on the ground that the evidence did not raise the theory that anyone else, other than Galvan, possessed the marihuana. A careful reading of the record shows otherwise.
As the majority opinion stated, on April 7, 1974, James Hallmark discovered sixteen kilogram “bricks” of marihuana in a duffle bag underneath a washtub in an abandoned shed on his mother’s property. The property was rented to Lupe Galvan, Sr., the appellant’s father. The only evidence connecting Galvan, Jr. with the marihuana came from various witnesses who testified about several conversations with appellant where he discussed his arrest.
One such witness was Ricky Sanford who testified, in addition to the matters noted in the majority opinion, that between January and April of 1974 he sold marihuana for Galvan on at least twenty occasions. Though he was uncertain as to the last occasion on which he did so, he described the selling procedure as follows:
“A. Well, like I would go to his house, and like he would have some weed, marijuana, you know, already bagged up in Baggies. And we would have it in the ice chest in his bedroom. And whenever I would go up there, we would start smoking pot. And then after a while, which I knew that if he had some, that I could sell some for him. And all I would have to do was either take some with me and go downtown, or wherever, and sell it — or I could just go downtown and see who wanted some and then go back to his house and get the marijuana in the Baggies, and take it to them. They would give me the money, and I would take it bake to Lupe, Jr.”
This evidence was sufficient to at least raise the issue that someone in addition to Galvan, Jr. had access to the marihuana. The evidence did not have to be so strong as to justify a charge on the law of parties under V.T.C.A., Penal Code, Section 7.02. Had the requested phrase “and no other person” been included in the charge, appellant’s counsel would have been entitled to argue for an acquittal on the theory that the State could not prove Galvan’s sole responsibility. An acquittal on this basis would be legally incorrect. In Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977), we held that to prove possession of a controlled substance requires proof of two elements: (1) that the defendant had care, custody, and control over the narcotics, and (2) that the defendant knew that the substance was contraband. In Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976), we held, as we have in countless cases, that possession of narcotics need not be exclusive; evidence that the defendant jointly possessed the contraband with another is sufficient to sustain the conviction. Thought the State must prove an affirmative link between the defendant and the contraband, circumstantial evidence is more than sufficient to provide that link. Martinez v. State, supra; Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978).
It is this rationale that explains why it is error to the State to give the charge advocated by the appellant. In Grego v. State, 456 S.W.2d 123 (Tex.Cr.App.1970), we held that where the evidence showed that the defendant and two other persons were responsible for the theft, it was error to the *632 State to instruct the jury that the defendant and “no other person” committed the offense. There is no error here.
Even if the evidence were insufficient to raise the possibility of someone else’s access to the contraband, appellant was not harmed by the omission. The jury was instructed that they had to find, beyond a reasonable doubt, that the defendant possessed the marihuana before returning a guilty verdict, and, in view of the nature of the evidence, that all the facts taken together had to produce, to a reasonable and moral certainty the conclusion that Galvan committed the offense. This instruction was certainly sufficient to protect appellant’s rights.
It is time for this Court to re-examine its position requiring a charge on circumstantial evidence in many cases. Historically, courts have made distinctions between circumstantial and direct evidence because of the supposedly less reliable nature of circumstantial evidence. Four basic reasons have been suggested for the supposed unreliability: (1) that circumstantial evidence is inherently less accurate as proof; (2) that, historically, it has led to gross injustice; (3) that people have a psychological tendency to weave theories from the evidence and then to go to extreme lengths to defend them, and (4) that horrifying factual circumstances often lead to rash inferences by juries in order to establish guilt. See Note, The Circumstantial Evidence Charge in Texas Criminal Cases: A Retrograde Doctrine, 55 Tex.L.Rev. 1255 (1977).
•The historical vice of circumstantial evidence has been coming under greater attack year after year. In Holland v. United States, 348 U.S. 121, 139 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954), the Supreme Court of the United States held that where a jury is properly instructed on the reasonable doubt standard, an instruction on circumstantial evidence is “confusing and incorrect.”
“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” 348 U.S. at 140 , 75 S.Ct. at 137 .
For a discussion of the unreliability of eyewitness testimony, see Loftus, Eyewitness Testimony (Harvard University Press, 1979).
In State v. Harvill, 106 Ariz. 386 , 476 P.2d 841, 844 (Ariz.1970), the Supreme Court overruled their long-standing rule that the omission of a charge on circumstantial evidence constituted fundamental error. In doing so, the court made the following observations:
“A similar view was expressed by the Honorable Learned Hand in United States v. Becker, 62 F.2d 1007 (2d Cir.1933). Referring to the alleged error of the trial court in failing to instruct the jury as to the weight of circumstantial evidence, he said:
“ ‘The requirement seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial. All conclusions have implicit major premises drawn from common knowledge; the truth of testimony depends as much upon these as do inferences from events. A jury tests a witness’s credibility by using their experience in the past as to similar utterances of persons in a like position. That is precisely the same mental process as when they infer from an object what has been its past history, or from an event what must have preceded it.’ (Emphasis ours). 62 F.2d at p. 1010 .
“Professor Wigmore discussing the relative probative value of direct and circumstantial evidence concluded:
“ ‘The rules of Admissibility have nothing to say concerning the weight of evidence when once admitted. * * * In *633 deed, it can be said that there are no rules, in our system of Evidence, prescribing for the jury the precise effect of any general or special class of evidence. So far as logic and psychology assist us, their conclusions show that it is out of the question to make a general assertion ascribing greater weight to one class or to the other.’ 1 Wigmore, Evidence (3d ed.), § 26, p. 401.” 476 P.2d at 844-45 .
Quoting from Ex parte Jefferies, 7 Okl.Cr. 544 , 124 P. 924 (1912), the Arizona court stated that all “evidence is largely circumstantial and even when most direct it depends upon circumstances for its credibility, weight, and effect.” After setting forth several hypothetical situations to illustrate this view, the court concluded that it was a mistake to distinguish between direct and circumstantial evidence. “The truth is that no human testimony is superi- or to doubt even in cases of the most direct proof.”
In State v. Gosby, 85 Wash.2d 758 , 539 P.2d 680, 684 (Wash.1975), the Washington Supreme Court also overruled the old requirement that a charge on circumstantial evidence should be given. In doing so, it relied heavily upon Holland, supra, and Professor Wigmore’s treatise on evidence. Quoting from Wigmore, the court stated:
“It can be said that there are no rules, in our system of evidence, prescribing for the jury the precise effect of any general or special class of evidence. So far as logic and psychology assist us, their conclusions show that it is out of the question to make a general assertion ascribing greater weight to one class or to the other. The probative effect of one or more pieces of either sort of evidence depends upon considerations too complex. Science can only point out that each class has its special dangers and its special advantages. 1 Wigmore on Evidence, § 26 (3d Ed. 1940).”
The court observed that the circumstantial evidence charge is a “convoluted one”, giving rise to the belief that a higher standard of proof than beyond a reasonable doubt is required when circumstantial evidence is involved. Again quoting from Wigmore, the court stated:
“When anything more than simple caution and a brief definition [of reasonable doubt] is given, the matter tends to become one of mere words, and the actual effect upon the jury, instead of being enlightenment, is likely to be rather confusion, or, . . .a continued incomprehension. In practice, these detailed amplifications of the doctrine have usually degenerated into a mere tool for counsel who desire to entrap an unwary judge into forgetfulness of some obscure precedent, or to save a cause for a new trial by quibbling, on appeal, over the verbal propriety of a form of words uttered or declined to be uttered by the judge. The effort to perpetuate and develop these elaborate unserviceable definitions is a useless one, and serves today chiefly to aid the purposes of the tactician. It should be abandoned. 9 Wigmore on Evidence § 2497 (3d Ed. 1940).”
In addition to the above authorities, the following jurisdictions have adopted the rationale of Holland: Alaska, Allen v. State, 420 P.2d 465 (Alaska 1966); Colorado, People v. Bennett, 183 Colo. 125 , 515 P.2d 466 (1973); Delaware, Henry v. State, 298 A.2d 327 (Del.1972); Kansas, State v. Wilkins, 215 Kan. 145 , 523 P.2d 728 (1974); Maine, State v. Jackson, 331 A.2d 361 (Me.1975); Nevada, Vincze v. State, 86 Nev. 546 , 472 P.2d 936 (1970); Oregon, State v. Draves, 18 Or.App. 248 , 524 P.2d 1225 (1974); Wyoming, Blakely v. State, 542 P.2d 857 (Wyo.1975); and Rhode Island, State v. Aurgemma, 116 R.I. 425 , 358 A.2d 46, 52, fn. 6 (1976).
Texas should join the growing list of jurisdictions who have abandoned the circumstantial evidence charge. The failure to do so will lead to nothing but obscure and pedantic decisions.
The judgment should be affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773112. Public record. Not legal advice.