By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Sufficient evidence juvenile possessed
marijuana in throwdown case (99-3-26)
On July 29, 1999, the Austin Court of Appeals held that there was sufficient
evidence to link the juvenile to marijuana found on the ground near where he and
only he had been standing.
99-3-26. In the Matter of V.M., UNPUBLISHED, No. 03-98-00370, 1999 WL 546980,
1999 Tex.App.Lexis ___ (Tex.App.--Austin 7/29/99)[Texas Juvenile Law (4th Ed.
1996)].
Facts: The State filed a petition alleging that V.M., a juvenile, engaged in
delinquent conduct by possessing marihuana in an amount of two ounces or less.
See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West Supp.1999).
The court adjudicated appellant delinquent and committed him to the Texas Youth
Commission. In one issue, appellant contends that the evidence is insufficient
to support the court's delinquency judgment.
The only witness to testify at the adjudication hearing was Austin Police
Officer David Fugitt. On May 10, 1998, Fugitt was on patrol in the 2300 block of
Wertz Avenue. Around 3:00 a.m., he noticed several juveniles standing in the
street around the back of a parked blue Cadillac. Fugitt parked his patrol car
away from the group. He got out of the car, hid behind a tree and observed the
group from about fifty feet away. The lighting was good enough that he could see
the individuals but he could not see underneath the car. Fugitt recognized one
group member as appellant since he had had dealings with him in the past. Fugitt
knew appellant was under seventeen years old. Fugitt believed the group was
violating the city curfew. He continued to watch the group and realized from a
familiar odor that some of them were smoking marihuana. Appellant was standing
next to the right rear tire while the other juveniles were standing three to
four feet directly behind the car. He saw two of the juveniles, but not
appellant, pass a cigar pipe, or blunt, back and forth.
As Fugitt approached the group, one of the individuals ran away. When Fugitt was
fifteen to twenty feet away from the group, appellant "turned his back to
me and then he bent over and appeared as though he was straightening his pant
leg." Fugitt approached the car from the left side and appellant, with his
back against the right side of the car, bent over, stood up, and slowly walked
away from the car. Fugitt walked to the right rear of the car to the exact area
where he saw appellant bend over and found a plastic sandwich bag containing
marihuana. The plastic bag was lying directly next to the right rear tire.
Fugitt believed that it had been placed there rather than thrown because it was
sitting upright next to the tire. On cross-examination, Fugitt stated that he
had not been able to see the right rear tire before he approached the group.
Additionally, Fugitt never saw appellant or any of the other juveniles handle
the plastic bag of marihuana. Appellant was the only group member Fugitt
observed in close proximity to the plastic bag of marihuana. Fugitt explained
that when appellant bent over, he could not see any of appellant's hand
movements. Because of appellant's actions and his close proximity to the plastic
bag of marihuana, Fugitt arrested appellant for possession of marihuana. Fugitt
searched appellant but did not find any marihuana on his body.
Held: Affirmed.
Opinion Text: Appellant contends that the evidence was insufficient to support
his delinquency adjudication. He contends that the evidence did not establish
that he exercised care, custody and control over the plastic bag of marihuana
because there was no affirmative link between him and the marihuana.
In determining the sufficiency of the evidence, the question is whether, after
viewing all the evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v.
State, 820 S.W.2d 154 (Tex.Crim.App.1991); Griffin v. State, 614 S.W.2d 155
(Tex.Crim.App.1981). The standard of review is the same in direct and
circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401
(Tex.Crim.App.1992). The trier of fact, in this case the trial court, is the
exclusive judge of the witness's credibility and the weight to be given his
testimony and is free to accept or reject any or all of the testimony. Adelman
v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The fact finder may draw
reasonable inferences and make reasonable deductions from the evidence.
Benevides v. State, 763 S.W.2d 587, 588-89 (Tex.App.--Corpus Christi 1988, pet.
ref'd).
In order to adjudicate appellant delinquent for unlawful possession of
marihuana, the State must prove that appellant exercised care, control, and
management over the marihuana and that he knew the substance in his possession
was marihuana. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995).
Possession of marihuana need not be exclusive and evidence which shows the
accused jointly possessed the marihuana with others is sufficient. Whitworth v.
State, 808 S.W.2d 566, 569 (Tex.App.--Austin 1991, pet. ref'd).
When marihuana is not found on the body of the accused and when the accused is
not in exclusive possession of the place where the marihuana is found, there
must be additional independent facts and circumstances that affirmatively link
the accused to the marihuana in such a manner that it can be concluded he had
control over it. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App.1995);
Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-- Austin 1991, pet. ref'd);
Trejo v. State, 766 S.W.2d 381, 384-85 (Tex.App.--Austin 1989, no pet.). An
affirmative link generates a reasonable inference that the accused knew of the
marihuana's existence and exercised control over it. See Whitworth, 808 S.W.2d
at 570. The independent facts and circumstances must show that the accused's
connection with the marihuana was more than fortuitous. Brown, 911 S.W.2d at
746-47; Martinets v. State, 884 S.W.2d 185, 187 (Tex.App.--Austin 1994, no
pet.). The mere presence of the accused in the vicinity of where marihuana is
found is insufficient to establish possession of marihuana. McGoldrick v. State,
682 S.W.2d 573, 578-79 (Tex.Crim.App.1985); Oaks v. State, 642 S.W.2d 174, 177
(Tex.Crim.App.1982); Randle v. State, 828 S.W.2d 315, 317 (Tex.App.--Austin
1992, no pet.).
Various factors have been articulated to help determine what constitutes an
affirmative link so that the accused's connection to the marihuana meets the
elements of intentional and knowing possession. See Whitworth, 808 S.W.2d at 569
(summarizing and listing thirteen factors identified in various opinions from
court of criminal appeals tending to establish elements of possession); Trejo,
766 S.W.2d at 384-85. "The number of factors present is less important than
the logical force of those factors, alone or in combination, in establishing the
elements of the offense." Martinets, 884 S.W.2d at 188 (citing Whitworth,
808 S.W.2d at 569, and Trejo, 766 S.W.2d at 385).
Of the factors we set out in Whitworth, the ones applicable in this case include
whether (1) the marihuana was in plain view; (2) the marihuana was conveniently
accessible to the accused; (3) a strong odor of marihuana was present; (4)
paraphernalia to use the marihuana was in view of the accused; and (5) the
conduct of the accused indicated a consciousness of guilt.
In the present case, Fugitt did not find the marihuana away from the car where
the other juveniles were standing but instead found it on the ground exactly
where appellant had been standing before he walked away. Because of the way the
plastic bag was sitting on the ground, it did not appear to Fugitt that it had
been thrown but that it had been placed on the ground. Since appellant was
standing next to the right rear tire and the other five juveniles were standing
three to four feet away from the back of the car, appellant was the only member
of the group in close proximity to the marihuana and it was easily accessible to
him. Additionally, only appellant bent down next to the right rear tire where
Fugitt found the marihuana. Fugitt noticed a strong marihuana odor coming from
appellant. Fugitt observed appellant's companions passing a cigar pipe or blunt
back and forth in appellant's view. Finally, appellant's conduct of turning his
back to Fugitt, bending down, straightening up and then slowly walking away when
Fugitt approached him indicated a consciousness of guilt.
As the State argued, these links when considered together would allow the fact
finder to infer that appellant had the plastic bag of marihuana in his
possession, that when he saw Fugitt approaching the group, he bent down to place
it near the tire and then walked away from the car. We hold that the evidence
was sufficient to affirmatively link appellant to the plastic bag of marihuana.
Conclusion
When considered in the light most favorable to the verdict, the evidence would
allow a rational trier of fact to find that appellant exercised care, custody
and control of the marihuana beyond a reasonable doubt. The evidence is
sufficient to establish that appellant possessed marihuana. Appellant's issue is
overruled and the court's judgment adjudicating appellant delinquent is
affirmed.