VIOLET YATES,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00019-CR
 
VIOLET YATES,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES WHITHAM, HECHT FN:1 AND LAGARDE
OPINION BY JUSTICE LAGARDE
JANUARY 16, 1989
        Violet Yates appeals her conviction by a jury for promotion of obscenity. The jury assessed punishment at confinement in the Dallas County Jail for one year and a five hundred dollar fine with both probated for 365 days. In four points of error, Yates asserts that: (1) the evidence was insufficient to support the conviction; (2) her conviction violated due process becausluntary manslaughter; (4) through (6) in admitting into evidence the pistol used in the commission of the offense since it was the fruit of an illegal search because the search was a warrantless search conducted, without consent, by officers who lacked authority or exigent circumstances to enter and search Ross's residence; (7) in admitting character evidence in the form of reputation testimony by Officer Mary Shepard and (8) in admitting character evidence in the form of reputation testimony by Of                __________________________
                                                          SUE LAGARDE
                                                          JUSTICE
PUBLISH
TEX. R. APP. P. 90
87-01230.CF in this case show that Ross and his date drove to the El Dorado Club in the early morning hours of February 1, 1987. Ross dropped his date off, parked his car, and talked to some friends outside. Ross then learned that the deceased had been bothering his date. When Ross became aware of this fact, he engaged the deceased in conversation. The conversation became heated and the deceased started to rise fro SUE LAGARDE
JUSTICE
PUBLISH
TEX. R. APP. P. 90.
85-01245/1246.RCDF
 
 
 
ased started to rise, Ross began to beat him with a pistol.
        During the beating, Ross's pistol discharged at least twice. One shot penetrated the deceased's right shoulder area and subsequently caused his death. Following the shooting, Ross left the bar. The police were called, and they conducted an investigation during which they obtained the names of several witnesses but recovered no weapon from the scene.
        On February 5, 1987, Dallas police investigator John Westphalen attempted to serve Ross with a felony arrest warrant for the murder. When Westphalen arrived at Ross's residence, Ross produced papers showing that he had turned himself in to the sheriff for the offense and had been released on bond.
        On February 11, 1987, Westphalen and Investigator John Coughlin attempted to execute a felony arrest warrant on Ross for unlawfully carrying a weapon in the El Dorado Club. They proceeded to Ross's residence and knocked on the door. When no one answered, Westphalen and Coughlin contacted Dallas Security Force officers who let them into the residence with a pass key. During a warrantless search of the apartment, Coughlin found a pistol on a shelf in the bedroom closet; he seized the pistol. After it was identified by an expert witness as the murder weapon, the pistol was admitted into evidence during the trial. With these facts in mind, we address Ross's eight points of error.
Involuntary Conduct
        
        In his first two points of error, Ross asserts that the trial court erred in refusing to submit his specially requested instruction on involuntary conduct and in submitting the court's own incorrect instruction on that issue. For two reasons, we disagree; consequently, we overrule points of error one and two.
        First, there is no substantive difference between the charge given and the charge requested. Ross's requested instruction on involuntary conduct reads:
        You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act. Conduct is not rendered involuntary simply because the person did not intend the result of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Jimmy Ray Ross, Jr., did cause the death of Raymond Johnson by shooting him with a firearm as alleged in the indictment, but you further believe from the evidence, or you have a reasonable doubt thereof, that the shooting of the firearm was not the voluntary act or conduct of the defendant, you will acquit the Defendant and say by your verdict "not guilty."
(Emphasis added.) The instruction given by the trial court reads:
        You are instructed that as a part of the law that before there can be a conviction for any offense set forth in the court's charge, it must be shown by the evidence beyond a reasonable doubt that the defendant voluntarily engaged in conduct, including an act. Conduct is not rendered involuntary simply because the person did not intend the result of his conduct.
 
        You are therefore instructed that if you find that the deceased was killed as a result of a gunshot but you further believe that the discharge of the gun was not as a result of voluntary conduct by the defendant, Jimmy Ray Ross, Jr. or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty."
(Emphasis added.) As stated by Ross, the only possible substantive difference in the two instructions is that the word "discharge" has been substituted for the word "shooting."
        Ross claims that this one difference significantly alters the instruction and renders the court's denial of the requested instruction harmful error. We disagree. When a refused charge is substantially the same as or is adequately covered by the charge given, there is no harm in failure to give the refusedP. P. 81(b)(2). We so hold. Consequently, we affirm.
 
 
                                                           SUE LAGARDE
JUSTICE
 
Justice Baker Concurs in the result only.
 
DO NOT PUBLISH
TEX. R. APP. P. 90as not required to include the instruction in its charge to the jury. See George v. State, 681 S.W.2d 43, 47 (Tex. Crim. App. 1984); Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982); Gaona v. State, 733 S.W.2d 611, 617 (Tex.t.] 1987, no pet.), to confirm that the evidence fails to support his guilt beyond a reasonable doubt. The court in Stowe listed the following factors implemented by the Court of Criminal Appeals to determine if a sufficient link exists between the accused and the contraband: (1) whether appellant was at the place searched at the time of the search; (2) whether there were other persons present at the time of the search and whether they were shown to be living on the premises so that appellant was not actually in exclusive possession; (3) whether the contraband if found in a bedroom closet, was in a closet that contained appellant's personal belongings or men's clothing if the appellant is male; (4) whether appellant had contraband on him at the time of his arrest; (5) whether appellant was then under the influence of any narcotic; (6) whether appellant made an incriminating statement; (7) whether appellant was in close proximity to the drugs when they were found; (8) whether there is any other evidence establishing appellant's occupancy of the premises; (9) whether the contraband was in plain view of the accused; (10) whether the amount of contraband found was large enough to indicate that appellant knew of its presence; (11) whether appellant was closely related to other persons in joint possession of the contraband or to other persons who owned the premises; (12) whether conduct of appellant with respect to the contraband was such as to indicate his knowledge or control. Stowe, 744 S.W.2d at 617. While these factors are helpful in ascertaining whether a sufficient link exists between the accused and the contraband, we may find that a sufficient link exists if less than all twelve of these factors are present. See generally Langford v. State, 632 S.W.2d 650, 651-52 (Tex. App.--Houston [14th Dist.] 1982, no pet.).
        We note that several of the Stowe factors are not present in the instant case. Abohosh did not make an incriminating statement, and he did not possess contraband at the time of his arrest. In addition, there is no evidence that Abohosh was under the influence of any narcotic at the time of his arrest, and the amount of contraband seized was not extremely large. However, Abohosh had "fresh" needle marks on his hands and legs, and the police found Abohosh in a bedroom littered with marihuana and drug paraphenalia -- on the dresser, on the nightstand, on the floor, and in the closet.
        We also note that several of the Stowe factors are present in this case. Abohosh was at the place searched at the time of the search. He was not only in the house, but in the very room in which heroin was found. The contraband was found in a bedroom closet that contained men's clothing and not women's. Abohosh was in relatively close proximity to the heroin, and the paraphernalia was within his immediate reach. The contraband, paraphernalia, and used drug capsules were all in plain view of Abohosh. Abohosh was closely related to the owner of the house, had a bedroom "fixed up" for him, and used the address on Desdemona as his present address. Although there was conflicting evidence and testimony regarding where Abohosh actually lived, the credibility of a witness is for the trier of fact to decide and the trial court, as trier of fact, is free to accept or reject any testimony. Thorn v. State, 651 S.W.2d 39, 41 (Tex. App.--Dallas 1983, pet. ref'd); see also Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). It is not the function of this Court to reweigh the evidence at trial. Thorn, 651 S.W.2d at 41.
        Viewing the evidence in the light most favorable to the verdict, we hold that there is sufficient evidence to link Abohosh to the contraband found in the bedroom where Abohosh was found. The facts of this case demonstrate that Abohosh exercised care, custody, control, and management over the contraband and that he knew the objects were contraband. Accordingly, Abohosh's sole point of error is overruled. We affirm the trial court's judgment.
 
 
SUE LAGARDE
JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01146.Fates of the Endorsement. These documents, however, are not a part of the record on appeal. FN:2 Moreover, the indemnity contract itself was never mentioned or introduced into evidence at trial.         The only evidence that an insurance policy existed between New Hampshire and Arkansas Express is an admission by New Hampshire which was read into the record: "On or about April 16, 1981, Plaintiff [Paragon] delivered to Arkansas Express, Inc., your policyholder, 106 pieces of freight at Arkla Industries, Paragould, Arkansas, to be delivered to Paragon Sales Company, Inc., Dallas, Texas. The answer is admitted." (Emphasis added.) Although this admission is some evidence of an insurance policy, the admission fails to indicate the type of insurance, the effective dates of the policy, or the limitations of the policy.
        Because the insurance policy was never introduced into evidence, the evidence is legally insufficient to establish Paragon's standing to bring a direct action suit as a third-party beneficiary. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We hold that there is no evidence of an indemnity contract between New Hampshire and Arkansas Express.
        It is well settled that one claiming to be a third-party beneficiary succeeds or fails according to the provisions of the contract sued upon. Greenville Indep. School Dist. v. B & J Excavating, 694 S.W.2d 410, raw the May 13, 1987 judgment. Thus, we do not address Doctors Hospital's first point of error complaining of the May 1, 1987 judgment.
 
We overrule points of error three through thirteen. This cause is reversed and remanded for new trial.614 (footnote omitted). We overrule appellant's third point of error.
        REVERSED and REMANDED for a new trial.
 
                                                           Perrin, 694 S.W.2d 257, 260-61 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Consequently, we affirm the judgment of the trial court.
        In light of our resolution of Paragon's first point of error, we do not find it necessary to address Paragon's remaining points of error. See TEX. R. APP. P. 90(a). The trial court's judgment is affirmed.
 
        
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00203.F. In the absence of some special circumstances, the relationship between the parties is limited to that of indemnitor and indemnitee. Tamburine v. Center Savings Ass'n, 583 S.W.2d 942, 947 (Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.). Unlike a title company, an abstract company makes a title investigation and is primarily concerned with the compilation of data, affecting the title to particular tracts of land, to enable an examiner skilled in land law to evaluate the title. Tamburine, 583 S.W.2d at 947, quoting Texas Practice Guide, Vol. 1, The State Bar of Texas, 1971, sec. 380 pp. 78-9.         Thus, the title company, as an insurer, conducts the following activities:
        [T]he title . . . company, before issuing a policy of title insurance, must necessarily take steps to inform itself of the status of the title to be insured. In the search for information upon which must depend the decision to either issue or decline to commit itself to issue a policy, the insurance company obviously investigates the title for its own use and benefit to determine whether it will undertake the risk. The title information on which the company bases its decision relates to the condition of the title held by the grantor and is not made for the prospective grantee or lienholder to whom the policy will finally issue. In performing these activities, the company does not act in behalf of the party to be insured, but acts exclusively for itself.
Tamburine, 583 S.W.2d at 948-49 (emphasis added). Therefore, as an insurer, Southwest generally has no duty to the insured to discover and disclose defects in title prior to the issuance
 
SUE LAGARDE
JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01146.FrosX87-00114DF M
 
FN:1 Although Justice Hecht was on the panel at the time of submission of this case, he left the Court between the time of submission and the time of the issuance of this opinion. Consequently, Justice Hecht did not participate in this opinion.
FN:2 From a supplemental transcript, we have determined that original exhibits were to be forwarded to this Court by order of the trial court. These exhibits, however, were never filed with this Court.
File Date[01-02-89]
File Name[880019]