Opinion
No. 05-03-00806-CR
Opinion Filed July 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st District Court Collin County, Texas, Trial Court Cause No. 401-81467-02. Reversed and Acquitted.
Before Chief Justice THOMAS and Justices MORRIS and O'NEILL.
OPINION
In this case we must decide whether there is sufficient evidence to support a conviction for possession of marijuana. The State contends that the evidence is sufficient because there are affirmative links that connect Erin Vanessa Wood to the contraband, either directly or as a party. We disagree. Accordingly, we reverse the trial court's judgment and render a judgment of acquittal.
Factual Background
Appellant and four other people were traveling in two vehicles on U.S. 75 in Collin County. Appellant was a passenger in a black Ford Expedition with a woman and a man. Two men were in a blue Honda. Department of Public Safety trooper Darren Lubbe observed both vehicles turn onto the U.S. 75 entrance ramp without giving a signal. He stopped the Honda, but the Expedition continued down the highway. There was a strong odor of burnt marijuana inside the Honda. With the driver's permission, Officer Lubbe searched the trunk and found six vacuum-sealed packages of marijuana next to two luggage bags containing women's clothing. During this investigation, the Expedition returned and Officer Lubbe stopped it also. The two women were not in the vehicle so he radioed for help in looking for them. The women were located at a gas station further down the highway by another officer who returned them to the scene of the investigation. The officer who located appellant testified that she seemed nervous. He stated that she gave him her correct name but when he checked records, he "couldn't find anything on either female." The woman with appellant said that her boyfriend had dropped them off so they could use the restroom and that they were waiting for him to return. The police found a trash bag in the Expedition that contained the odor of raw marijuana. The Honda driver's identification was also in the Expedition and the Honda driver explained that the other driver had switched vehicles with him at the last stop. Appellant was charged with possession of the marijuana found in the Honda.Applicable Law
In considering a legal sufficiency issue, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). When the evidence is legally insufficient we reverse and render a judgment of acquittal. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Possession means actual care, custody, control, or management of the contraband Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2004). To support a conviction for unlawful possession of the marijuana, the State must prove that the appellant (1) exercised care, control, or management over the marijuana, and (2) knew the substance possessed was marijuana. See King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Porter v. State, 873 S.W.2d 729,732 (Tex.App.-Dallas 1994 pet. ref'd). When the appellant is not in exclusive control or possession of the place where the marijuana is found, the evidence must affirmatively link her to the contraband so as to support a reasonable inference that she knew of the marijuana's existence and exercised control over it. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995); Taylor v. State, 106 S.W.3d 827, 830-831 (Tex.App.-Dallas 2003, no pet.). The number of links present is not as important as their logical force connecting the appellant to the marijuana. Taylor, 106 S.W.3d at 831. Under the law of parties, an appellant may be convicted of the offense of possession if, with the intent to promote or assist in the commission of the offense, she solicited, encouraged, directed, aided, or attempted to aid another person in its commission. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). This fact may be proved by circumstantial evidence. Michael v. State, 864 S.W.2d 104, 107 (Tex.App.-Dallas 1993, no pet.).Application of Law to Facts
There is no direct evidence that appellant exercised care, control, or management of the marijuana in the trunk of the Honda. The State, however, contends that the following are affirmative links connecting appellant to the marijuana:*
There was a burnt marijuana smell inside the Honda and a strong odor of marijuana in its trunk.
*
There was testimony that the drivers of the Expedition and the Honda had switched vehicles, which the State argues implies that "all of the individuals" had been switching vehicles.
*
The six vacuum-packed containers of marijuana in the trunk of the Honda were located next to two large duffle bags of women's clothing.
*
There was testimony that the driver of the Ford Expedition dropped off appellant at the nearby gas station to use the restroom and returned to where the Honda was stopped, which the State argues implies "flight from the scene" by appellant.
*
Appellant "acted nervous," and, the State argues, "lied about her identifying information," and "never attempted to correct misstatements" of the other occupants of the vehicles.
*
There was an empty trash bag that had a strong odor of marijuana in the back of the Expedition.The odor of marijuana can constitute an affirmative link. However, there is no indication that appellant was ever in the Honda to smell the odor. The Honda driver testified that he and the driver of the Expedition had recently switched vehicles, but there is nothing in the record to indicate that appellant or the other passengers switched vehicles. The State then suggests that appellant had access to and possession of the Honda's trunk because there were two duffle bags of women's clothing next to the marijuana. However, there is no evidence of who placed the bags in the trunk, whether it was appellant's, or whether the marijuana was placed in the trunk before or after the women's clothing. In fact, Officer Lubbe testified that there was no evidence that any of appellant's belongings were in the Honda. The State next contends that appellant fled from the scene. However, we are directed to no evidence that appellant knew that the Honda had been stopped by the police, was aware of any criminal investigation, or made any effort to conceal herself. When the officer who found the appellant at the gas station questioned the appellant, the woman who was with her stated that her "boyfriend" had dropped them off to use the restroom and that they were waiting for him. This explanation is uncontradicted. The State points out that appellant "seemed nervous" when first approached. Nervousness alone is not suggested as an affirmative link by any authority cited by the State. On the record before us, there is nothing to suggest that appellant's nervousness was connected to the contraband The State then says that appellant lied about her identification. However, the officer who checked appellant's identification merely said that he "did not find anything" (even though appellant gave him her correct name). The record is silent as to whether appellant owned a driver's license and does not indicate what records were checked. The State next claims that appellant is linked to the marijuana because she never attempted to correct misstatements of her co-conspirators. We first observe that appellant was examined "individually" by Officer Lubbe. His only testimony about his other interviews was that he talked to the driver of the Honda and its passenger separate from each other. In the record before us there is no evidence that appellant heard any statements by any other persons or was questioned in the presence of the others. Finally, the State argues that the odor of raw marijuana in the black trash bag in the Expedition constitutes a link to the marijuana in the Honda's trunk. However, we are not directed to any evidence to tie the trash bag in the Expedition to the marijuana in the vacuum-sealed bags in the other vehicle. Standing alone, this evidence does not connect appellant to the marijuana in the Honda. The State points to no other evidence that appellant exercised care, control, or management over the marijuana. Neither are we directed to any other evidence that she solicited, encouraged, directed, aided, or attempted to aid another in the commission of the offense.