Ramos v. State , 1972 Tex. Crim. App. LEXIS 2623 ( 1972 )

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn and the following substituted in lieu thereof.

This appeal is from a conviction for the unlawful possession of a narcotic drug, to-wit: marihuana. Punishment was assessed by a jury at five years.

The record reflects that on the evening of March 22, 1970, Officer Omar Lucio of the Harlingen Police Department received information from a confidential informant that the informant had smoked marihuana with appellant at appellant’s home. On the basis of this information, a search warrant was obtained and executed at the appellant’s house at approximately 6:43 A.M. the following morning. Upon being shown the warrant and informed of the purpose of the officer’s visit, appellant stated that if the officers “did find anything there, somebody else had planted it there.” A search of the residence revealed no contraband. Marihuana was found, however, in a utility room which was located behind the house.

Appellant complains that the trial court erred by refusing to submit his requested charge to the effect that they should acquit appellant if they found that someone other than appellant had placed narcotics on the property without his knowledge or consent. A timely objection was made to the charge.

Where an accused is charged with the unlawful possession of a narcotic drug, two elements must be proven: (1) that he exercised care, control, and management over the contraband; and (2) that he knew that the object he possessed was contraband. This court stated in Fawcett v. State, 137 Tex.Cr.R. 14, 127 S.W.2d 905, that the state must prove the accused knew what he possessed because if—

“ . . .he did not know what it was, it would be apparent that there was an entire absence of an intent on his part to violate the law. He would, in such a case, be an innocent victim of circumstances. Whether this affirmative defense was true or not was a question of fact to be solved by the jury under an appropriate instruction from the court.”

The state does not question the above cited rule but contends that the court’s charge correctly submitted the law with regard to this element of the case¹ and that the affirmative defense was not properly raised.

The court charged the jury only as to the possession element of the offense. Nothing in the charge mentions lack of knowledge. Where this issue is properly raised, failure to give an affirmative charge on the knowledge issue is reversible error, e. g. Goldman v. State, Tex.Cr.App., 468 S.W.2d 381; Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Fawcett v. State, supra.

The rule for determining when an affirmative charge on a defense theory should be submitted is stated in 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660:

“A defensive theory when raised by the evidence should always be submitted to the jury. The defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unim-peached or contradicted, or whether it is conflicting. Where the truth of the testimony is for the jury to determine, a charge on a defensive issue raised by the testimony should be given, even if the trial court is of the opinion that the testimony is not entitled to credence.”

In the instant case, the contraband was found in a utility room behind the appellant’s residence. The door to the room was always open and had no lock. Neighbors and friends had access to and used the room. One officer testified that he had conducted several investigations in answer to calls from residents of the neighborhood who had found marihuana hidden on their property.

While appellant did not take the stand, his wife testified that appellant could not have possessed marihuana on the day and at the place stated by the informant, since during that time the entire family had been out of town. She testified that several of appellant’s friends had been in the room recently. Upon being shown the marihuana by the officers at the time of the search she stated: “Which of your friends did this to you?”²

Through the cross-examination of the officers and through the testimony of appellant’s wife, the theory was raised that the informant had planted the marihuana in the utility room.

The question before this court is not whether we believe appellant’s defensive theory or whether the jury would have found for him under a proper charge. The question, instead, is whether the jury reached its decision after having properly been charged as to the law. Under the charge given by the court, the jury could have convicted even if they believed that appellant was unaware that narcotics were hidden on his property.

The charge requested by appellant was substantially the same charge that was approved by this court in Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301, 305, a case in which the only testimony raising the issue was that of accused’s wife. The trial court’s failure to charge on the defensive theory in the instant case constitutes reversible error, e. g. Goldman v. State, Tex.Cr.App., 468 S.W.2d 381; Harris v. State, Tex.Cr.App., 465 S.W.2d 175; Rodriguez v. State, supra; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716; Fawcett v. State, supra.

This error was compounded when the trial court also refused appellant’s requested charge on circumstantial evidence.³

The distinction between circumstantial evidence and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proven. Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269; Beason v. State, 43 Tex.Cr. 442, 67 S.W. 96.

In the case at bar, no witness saw appellant exercise any control over the contraband. Nor was the contraband found within appellant’s residence, where he would have had sole access to it. Instead, the marihuana was found at a place on appellant’s property which was accessible to anyone.

There is direct evidence that marihuana was present on appellant’s property.⁴ However, there is no direct evidence that appellant possessed such contraband. This, the ultimate fact which the state had to prove, could only be inferred from the proof of the minor fact that the contraband was present on the property. Possession was thus proven by circumstantial evidence, and the trial court committed reversible error by failing to give appellant’s requested charge thereon. See Denny v. State, Tex.Cr.App., 473 S.W.2d 503; Arsiaga v. State, 372 S.W.2d 538; Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623.

The state’s motion for rehearing is overruled.

For the reasons herein stated, the judgment is reversed and the cause is remanded.

1 . The court’s charge is as follows:

“1. Our law provides that it shall be unlawful for any person to possess or have under his control any narcotic drug. Our law further provides that marijuana is a narcotic drug.

“2. By the term ‘possession,’ as used herein, is meant the care, custody, or control or management of the item in question.

“Now if you find from the evidence beyond a reasonable doubt that the defendant, Domingo Ramos, did in Cameron County, Texas, on or about the 23rd day of March, 1970, unlawfully possess or have under his control a narcotic drug, to-wit, marijuana, as alleged in the indictment, then you will find the defendant guilty as charged.

“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.

“4. You are instructed that you cannot convict the defendant unless you find from the evidence beyond a reasonable doubt that the exhibit introduced in evidence by the State is marijuana and unless you further find from the evidence beyond a reasonable doubt that defendant had the same in his possession; and if you have a reasonable doubt as to either of such matters, you will resolve that doubt in defendant’s favor and acquit him.”

2 . Two of the officers testified that she had said: “Now let’s see your friends get you out of this.”

3 . Appellant objected to the charge on this ground and raised the failure to submit a charge on circumstantial evidence as a ground of error on this appeal.

4 . The cases of Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173, and Spencer v. State, 154 Tex.Cr.R. 427, 227 S.W.2d 552, which are relied upon by the state, were decided under Article 667-25, V.A.P.C. which contains a “prima facie evidence” section. These cases have no relevance to prosecutions under Article 725b, V.A.P.C.