Opinion

Ettipio v. State

  • 794 S.W.2d 871
  • 1990 Tex. App. LEXIS 1856
  • 1990 WL 105871
Court
Court of Appeals of Texas
Filed
Jul 26, 1990
Status
Published
Author
Sears
On the bench
Robertson, Sears, Draughn
Cited by
7 cases
Authority
More cited than 10.7%

The opinion

SEARS, Justice,

dissenting.

I respectfully dissent. I find the evidence insufficient to link appellant with the contraband recovered in the apartment. The evidence adduced by the state shows:

(1) two other persons were present when the cocaine was seized from the apartment;

(2) appellant was not present at the time of the search and seizure;

(3) appellant was not shown to have owned, rented or leased the apartment;

(4) appellant was not shown to have resided in the apartment;

(5) there was no evidence appellant was ever in actual possession of the cocaine in the apartment;

(6) there is no evidence to show appellant had knowledge of the cocaine in the apartment;

(7) appellant had a key to the apartment and an access card to the complex;

(8) the cocaine in the apartment was packaged the same way as the cocaine found in the trunk of appellant’s car.

The burden of proof is on the state to affirmatively link the accused to the contraband in such a way that raises the reasonable inference that the accused not only knew of the existence of the contraband, but also that he exercised control over it. Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App.1979). The possession of the access card and the apartment key, together with the likeness of the packaging, might be circumstances tending to show opportunity and even knowledge; however, it is not sufficient to show possession or control. See Waldon v. State, 579 S.W.2d 499 (Tex.Crim.App.1979).

Also, the circumstances that affirmatively link appellant to the contraband at the apartment must also exclude all other reasonable hypotheses, beyond a reasonable doubt. Further, a finding of guilt is not a rational finding if the evidence also supports a reasonable inference other than appellant’s guilt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). The fact that the cocaine in appellant’s car was packaged and marked in the same manner as the cocaine in the apartment causes one .to reach the reasonable inference that appellant purchased his cocaine from that “batch” found in the apartment, or, that appellant was a courier who was dispatched to deliver and/or sell the contraband found in this car. I submit that these hypotheses are reasonable and were not excluded beyond a reasonable doubt by the state. Therefore, the state failed in its burden of proof. I would reverse the conviction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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