holding defendant waived right to jury-assessed punishment even though defendant filed a written motion requesting that the jury assess punishment because defendant did not object when trial court heard punishment evidence and assessed punishment
How later courts described this case
- holding defendant waived right to jury-assessed punishment even though defendant filed a written motion requesting that the jury assess punishment because defendant did not object when trial court heard punishment evidence and assessed punishment
- stating possession of contraband need not be exclusive and evidence showing defendant jointly possessed with another is sufficient
- holding mere presence where others possess drugs is insufficient for conviction
- even when defendant filed election to have jury assess punishment, defendant waived the right when she did not object to dismissal of jury, presentation of evidence to trial court or assessment of punishment by trial court
Written by the judges who cited it.
The opinion
DUNCAN, Judge,
concurring.
I again feel compelled to express my opposition to the Court’s reviewing a court of appeals’ judgment regarding the sufficiency of evidence. In Beardsley v. State, 738 S.W.2d 681 (Tex.Cr.App.1988) (Duncan, J., Concurring and Dissenting Opinion), I stated that “[w]e should only review those Court of Appeals’ decisions that erroneously impact the criminal law of this state.” Id., at 686 . The court of appeals’ subjective determination that there was sufficient evidence to convict Lloyd Dale Martin of aggravated possession of methamphetamine, even if it is erroneous as the majority has concluded, does not “erroneously impact the criminal law of this state.” Id. Therefore, we should never have granted the appellants’ petition for discretionary review.
On the other hand, since review was granted, I concur with the majority’s conclusion “that the state did not sustain its burden of proof that appellant was a party to the offense of possession of methamphetamine.”