Armando Garza v. The State of Texas--Appeal from 87th District Court of Freestone County

NO. 10-89-216-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ARMANDO GARZA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 87th Judicial District Court

Freestone County, Texas

Trial Court # 89-066-CR

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O P I N I O N

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Appellant was convicted in a bench trial of possessing more than fifty pounds of marihuana. The court made a deadly weapon finding and sentenced him to twenty years in prison. Appellant contends the evidence is insufficient to prove that he knowingly possessed the marihuana and attacks the deadly weapon finding. The judgment will be affirmed.

Officer Price searched a van after smelling a "strong" odor of unburned marihuana in the vehicle. He found hidden underneath the chassis fifty-one pounds of marihuana and a notebook of names and numbers. The notebook containing Appellant's name appeared to be drug-related. Within Appellant's reach where he was sitting in the rear of the vehicle were five ounces of marihuana hidden under a mattress and marihuana seeds on the floorboard. Three guns and ammunition were under the front passenger's seat wrapped in a bag. Appellant failed to appear after his indictment, and his bail was forfeited.

His first point is that the evidence is insufficient to prove that he intentionally and knowingly possessed the marihuana. A defendant must exercise care, custody, control, and management over illicit drugs, knowing them to be drugs, before he is guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). If the defendant is not in sole possession of the premises where drugs are found, the state must prove an affirmative link between the contraband and the defendant to establish his possession. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). An affirmative link is established by facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and that he exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389.

The following facts and circumstances were sufficient to affirmatively link Appellant to the marihuana. First, the odor of marihuana in the van. See Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972). Second, his proximity to the marihuana and seeds in the rear of the vehicle where he was sitting. See Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Lewis v. State, 502 S.W.2d 699, 701 (Tex. Crim. App. 1973). Third, the guns in the vehicle. See Wilson v. State, 495 S.W.2d 927, 929 (Tex. Crim. App. 1973). Finally, Appellant's failure to appear which resulted in the bond forfeiture. See Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (flight from prosecution). The evidence is sufficient to prove beyond a reasonable doubt that Appellant knowingly possessed the marihuana inside the vehicle. His possession of the marihuana inside the vehicle and the notebook containing his name were affirmative links between him and the marihuana found underneath the van. See Hudson v. State, 643 S.W.2d 162, 163 (Tex. App.--Austin 1982, pet. ref'd). Point one is overruled.

In point two Appellant argues that the evidence is insufficient to prove that he possessed over fifty pounds of marihuana. Specifically, he asserts that the marihuana weighed less than fifty pounds because of the seeds it contained. The definition of marihuana excludes sterilized seeds incapable of germination. Tex. Health & Safety Code Ann. 481.002(26)(E) (Vernon 1991). A defendant must prove that the marihuana contained seeds which should have been excluded from its weight. Elkins v. State, 543 S.W.2d 648, 649-50 (Tex. Crim. App. 1976).

Appellant stipulated that the marihuana weighed over fifty pounds. Once made, this stipulation became a judicial admission he cannot contradict. See Wallace v. State, 478 S.W.2d 499, 500 (Tex. Crim. App. 1972); Davidson v. State, 737 S.W.2d 942, 948 (Tex. App.--Amarillo 1987, pet. ref'd). Assuming that the stipulation was not a judicial admission, Appellant nevertheless failed to prove that the marihuana contained "sterilized seeds of the plant . . . incapable of germination"; he proved only that thirty-one pounds of the marihuana contained fourteen-percent seeds, "zero-percent germinated." Accordingly, point two is overruled.

The court must affirmatively make a deadly weapon finding if the defendant "used or exhibited a deadly weapon" while committing a felony offense. Tex. Code Crim. Proc. Ann. art. 42.12(3g)(a)(2) (Vernon Supp. 1991). Appellant complains in point three that the evidence is insufficient to support the deadly weapon finding. Although stated as a sufficiency question, his argument actually involves statutory construction. See Patterson v. State, 769 S.W.2d 938, 940-41 (Tex. Crim. App. 1989).

"Use" is "any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." Id. at 941. "Exhibiting" means displaying the weapon. Id. Although Appellant did not display the guns found underneath the right front seat, the question is whether he used them to facilitate his possession of the marihuana.

In Patterson the defendant, who was found guilty of possessing methamphetamine, told the arresting officer that he had a gun nearby. Although the officer had difficulty finding the weapon, the court nevertheless held that a rational trier of fact could have found that the defendant used the firearm to facilitate his possession of the drugs. Id. at 942.

The three guns in the van were easily accessible to any of its occupants. Guns are often used to protect illegal narcotics and the people possessing them. Based on the record as a whole, any rational trier of fact could have found that Appellant used the guns, merely by possessing them, to facilitate his possession of the marihuana. See id. Point three is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas, Chief

Justice McDonald (Retired) and

Justice James (Retired)

Affirmed

Opinion delivered and filed March 28, 1991

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