Larry Glenn Collins v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-162-CR

LARRY GLENN COLLINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 90-833-C

O P I N I O N

A jury convicted Larry Glenn Collins of possessing more than five pounds of marihuana and assessed punishment of seventeen years. He appeals on four points. His first contention is that an instruction should have been submitted on the lesser-included offense of possession of marihuana under five pounds. He further contends that his motion for a mistrial should have been granted when he established that the punishment was determined by quotient. Collins' third contention is that there was insufficient evidence to establish possession of over five pounds of marihuana because there were no affirmative links between him and the marihuana recovered in his attic. His final contention is that the court should have allowed him to elicit testimony concerning his cooperation with the police when such evidence was offered to mitigate punishment. We will affirm the judgment.

Collins' arrest and subsequent conviction arose out of a search of his home at 3400 Ethel by police officers. During the execution of the search warrant, several small amounts of marihuana were recovered from the residence. The officers recovered, with Collins' cooperation, 5.01 ounces and .97 pounds in the master bedroom, 2.37 ounces underneath the living room couch, and .82 ounces on a filing cabinet. They also found, with the help of a drug dog, 16.67 pounds in a box in the attic of the home. The box was wrapped, stamped and addressed to Olga Contreras at 2004 McFerrin. This box was identical to boxes found in Collins' garage and child's room.

Collins' third complaint is that there was insufficient evidence to establish possession of over five pounds of marihuana because there were no affirmative links between him and the marihuana recovered in his attic. The State must prove that he exercised care, custody, control, and management over the illicit drugs. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). The contraband was found in Collins' home, where he lived with his wife and son; thus, he was not in sole possession of the premises. In such a case, the State must prove an affirmative link between the contraband and Collins to establish his possession of the marihuana in the attic. See 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 Collins knew the contraband existed and that he exercised care, custody, control, and management over it. See Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984).

Several facts and circumstances exist which indicate Collins' knowledge and control of the marihuana found in the attic. (1) He resided in the house where the marihuana was found. See Deshong 625 S.W.2d at 329. (2) He was aware of the existence of marihuana in his home because he told the officers it was there. (3) The officers discovered, in plain view, scales which are of the type commonly used to weigh marihuana. See Olivas v. State, 652 S.W.2d 606, 607 (Tex. App. El Paso 1983, no pet.). (4) The box in the attic containing the large quantity of marihuana was wrapped, addressed, and stamped. See Deshong, 625 S.W.2d at 329 (holding that when contraband is found in an enclosed and conveniently accessible place to the accused there is an affirmative link to the narcotic). Also, (5) the box in the attic was identical to a box found in the child's bedroom and one found in the garage. All three boxes were "U-Haul" packing boxes, bearing the "U-Haul" label, and the one in the garage contained what "appeared to be marihuana residue and some seeds." The officers also found $2,500 hidden underneath clothing in a dresser drawer in the child's room. See Ettipio v. State, 794 S.W.2d 871, 874 (Tex. App. Houston [14th Dist.] 1990), pet. dism'd, 817 S.W.2d 344 (Tex. Crim. App. 1991).

In reviewing the sufficiency of the evidence on appeal, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Dickey, 693 S.W.2d at 387 (quoting Jackson v. Virginia, 443 U.S. 307, 319, n.12, 99 S. Ct. 2781, 2789, n.12, 61 L. Ed. 2d 560 (1979)). The evidence of affirmative links between Collins and the marihuana in the attic are sufficient so that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, including his possession of the marihuana in the attic. We overrule the third point.

Collins' first point of error is that an instruction should have been submitted to the jury on the lesser-included offense of possession under five pounds. A two-prong test has been established to determine when a jury must be charged on a lesser-included offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). First, the lesser-included offense must be included in the proof necessary to establish the offense alleged; and, second there must be some evidence in the record which shows that, if Collins is guilty, he is guilty only of the lesser-included offense. See id.

No evidence was produced at trial establishing that, if Collins is guilty, he is only guilty of the lesser-included offense. As can be seen in the discussion of the first point, the evidence linked him with the marihuana in the attic. We overrule the first point.

Collins' second contention is that he should have been granted a mistrial because the jury determined his punishment by quotient. Before a verdict will be overturned on the ground that the jury reached a quotient verdict, the appellant must show that the jurors agreed to be bound by the result of the averaging process. Martinez v. State, 496 S.W.2d 612, 613 (Tex. Crim. App. 1973). Thus, jurors can use an averaging device, such as a quotient, in assessing the number of years of imprisonment so long as they do not agree to be bound by the result. Id.

Each juror who testified at the hearing on the motion for new trial stated that no agreement was made, prior to averaging the numbers, to assess punishment at whatever figure was computed. Therefore, they did not reach an improper quotient verdict, and the court did not abuse its discretion by denying the motion for a new trial. We overrule the second point.

The fourth complaint is that the court should have allowed Collins to elicit testimony concerning his cooperation with the police to mitigate his punishment. Factors that can be introduced to mitigate punishment are those that have a relationship to circumstances of the offense or to the defendant before or at the time of the offense; factors that arise after the offense and independently of the defendant are properly excluded. Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon Supp. 1992); Stiel v. State, 585 S.W.2d 716, 718 (Tex. Crim. App. 1979), cert. denied, 449 U.S. 1114, 101 S. Ct. 926, 66 L. Ed. 2d 843 (1981); Goudeau v. State, 788 S.W.2d 431, 435-36 (Tex. App. Houston [1st Dist.] 1990, no pet.). Here, Collins cooperated with the police subsequent to his arrest. Section 3(a) of article 37.07 has been amended, since Stiel and Goudeau, by adding the phrase "any matter the court deems relevant." See Tex. Code Crim. Proc. Ann. art. 37.07 3(a). This court is of the opinion that the Legislature added this phrase not to change the holding in Stiel and Goudeau, but merely to recognize the trial court's discretion. Accordingly, the trial judge did not abuse his discretion by not allowing the testimony. We overrule the fourth point.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 7, 1992

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