# Bryant v. State > Texas Court of Appeals, 1st District (Houston) · September 16, 1998 · 982 S.W.2d 46 URL: https://www.frixlaw.com/law-library/cases/9776112 ## Case - **Full name:** Phyllis Ruth BRYANT, Appellant, v. the STATE of Texas, Appellee - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** September 16, 1998 - **Citations:** 982 S.W.2d 46; 1998 WL 223912 - **Precedential status:** Published - **Opinion:** Dissent by O'Conner - **Judges:** O'Conner, Mirabal, O'Connor, Nuchia - **Cited by:** 23 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/9776112 ## Opinion text O’CONNER, Justice, dissenting. I disagree with the majority’s resolution of points of error two and three. Facts I agree with the facts as stated by the majority. However, some facts I feel relevant were omitted and others bear repeating. The search of the house was conducted on information from a confidential informant after a controlled buy at house. The search warrant did not state the name of the person who sold the crack, but described the person as an “unknown” black male, clean shaven. At trial, the police did not know who owned the house. No one fitting the description of the black male in the search warrant was found at the house. When the officers arrived at the address, they found three people, including the appellant and Eddie Lane, standing in front yard. Some of the officers took custody of the three people, and the other officers went inside where they found four people in the den. In the bedroom shared by the appellant and Lane, the police found women’s clothing and the appellant’s Texas identification card on top of one of the two dressers. The cocaine was found on top of the other dresser. 1. Law of Parties In point of error two, the appellant argues the trial court erred in allowing the jury to convict her based on the law of parties because there was no evidence she aided, assisted, or encouraged another person to possess the cocaine. The appellant made a timely objection to the charge. A person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or by both. Tex. Penal Code §7.01(a); Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App.1996). Therefore, under the law of parties, the State is able to enlarge a defendant’s criminal responsibility to acts in which she may not be the principal actor. Goff, 931 S.W.2d at 544 . Where there is no charge on the law of parties a defendant may only be convicted on the basis of her own conduct. Goff, 931 S.W.2d at 544 . *51 Evidence is sufficient to support a conviction under the law of parties where the defendant is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994); Becker v. State, 840 S.W.2d 743, 746 (Tex.App.—Houston [1st, Dist.] 1992, no pet.). The evidence must show that at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985); Becker, 840 S.W.2d at 746 . In this case, the State presented no evidence to show the appellant was physically present in the bedroom at the same time the cocaine was present. The State presented no evidence the appellant was in possession or the cocaine or that she agreed with Lane or some other person to possess it. The State presented no evidence the appellant was guilty of possession of cocaine or the conduct of another for whom she was criminally responsible. The State presented no evidence the appellant encouraged, directed, or aided another person in the commission of the offense. The State defends the conviction by arguing the appellant must have known of the presence of the cocaine in the bedroom she shared with Lane and therefore she was guilty as a party. This “must have known” theory of proof relieves the State of the bother of providing evidence. The majority agrees with the State’s theory, and succinctly states its holding in one sentence: Since the evidence showed that appellant and Lane exercised control over the room where the cocaine was found, the trial court properly submitted the law of parties jury charge. We overrule point of error two. Majority op., at 49. The State and the majority do not contend that the appellant’s presence was enough, for indeed she was not present in the same room as the cocaine. At the time of the search, she was in the front yard. The cocaine was inside the house, in a jar (which is portable), on top of someone else’s dresser. There was no proof that the appellant was ever in the room at the same time as the cocaine. There was no proof the appellant even knew about the cocaine. The jar with the cocaine could have been placed on the dresser while the appellant was outside of the house; someone in the house could have moved it there just before the search. The State’s “must have known” theory of proof has already been rejected by this Court. In Boudreaux v. State, 757 S.W.2d 139, 145 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd), the State defined the issue as whether the defendant knew what was going on. Id. The State argued the defendant must have known what was going on and therefore was guilty as a party. We disagreed with the State and acquitted the defendant. Id. at 146 . Here, as in Boudreaux, except for the “must have known” theory of proof, there is no evidence the appellant— acting with intent to promote or assist the commission of an offense — solicited, encouraged, directed, aided, or attempted to aid another person to commit an offense. If the majority’s holding is correct, it would justify the submission of the charge of parties even if the appellant had been blocks away at the time of the search, even if she had been in the next county. The majority’s holding does not even require the appellant’s presence at the place of the offense. I would find it was reversible error to charge the jury on the law of parties. 2. Legal Sufficiency of the Evidence In point of error three, the appellant argues the evidence was legally insufficient to support her conviction. Because I would sustain point of error two (the evidence did not support a conviction based on the law of parties), I would review the evidence under this point to determine if it supports the appellant’s conviction as a principal to the offense. When viewed in the light most favorable to the State’s case, the evidence does not establish the appellant’s guilt beyond a reasonable doubt. At most, the evidence shows the appellant lived in the bedroom where the cocaine was found. At the time of the raid, *52 the appellant was outside the house. There was no evidence that the appellant had the cocaine in her possession before the raid. At least five other people (Lane and the four people arrested inside the house), had access to the room where the cocaine was found. I would find the evidence was legally insufficient to support the jury’s finding that the appellant is guilty of possession. See Williams v. State, 859 S.W.2d 99, 101-02 (Tex.App.—Houston [1st Dist.] 1993, pet. refd) (evidence insufficient when defendant not in possession of cocaine and did not make incriminating statements or furtive gestures); Tatum v. State, 836 S.W.2d 323, 324 (Tex.App.—Austin 1992, pet. refd) (evidence insufficient to convict defendant of possession where he fled house in which drug paraphernalia was found and was found near syringe containing drugs); Hoss v. State, 735 S.W.2d 899, 902 (Tex.App.—Houston [14th Dist.] 1987, no pet.) (the State must link defendant to the contraband, not only to the location where the contraband was found); see also Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.—Houston [1st Dist.] 1994, pet. refd) (evidence sufficient where defendant was sole occupant of house and drugs were in plain view inside closets). I would sustain point of error three and render a judgment of acquittal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776112. Public record. Not legal advice.