Steven Montgomery v. State ( 2001 )

NUMBER 13-00-199-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________

STEVEN MONTGOMERY

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

____________________________________________________________

On appeal from the 197th District Court of Cameron County, Texas.

____________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Valdez

A jury convicted appellant Steven Montgomery of felony possession of marihuana⁽¹⁾ and escape.⁽²⁾ The jury then sentenced him to seven years imprisonment for the possession of marihuana offense and two years for the escape offense, both sentences to be served concurrently. Appellant raises three issues on appeal. We affirm the judgment of the trial court.

Appellant purchased a plane ticket and checked two bags from Valley International Airport to Houston. Drug Enforcement Agency drug sniffing dogs on a routine check alerted police to the marihuana. Appellant's name and address were on baggage labels on the two suitcases where the marihuana was found. Appellant, who had gotten a Southwest Airlines boarding card, was paged at the airport. He did not reply to the page or get onto the flight, and left the airport shortly before the plane took off. Appellant was arrested when he returned to the airport to attempt to get a refund for the unused plane ticket and, soon thereafter, provided the same address as was on his baggage tags while being admitted into jail. He also provided the police, without exercising his fifth or sixth amendment rights, a name when they asked him who's marihuana it was, and told police that he had been paid $2000 to transport the suitcases, but not the marihuana, to Houston.

In his first and second issues, appellant argues that there was no evidence, or in the alternative, factually insufficient evidence that he knew that the item he possessed was marihuana. Evidence is factually insufficient if it is so weak as to be clearly wrong or manifestly unjust or if the finding was against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

A person commits an offense if he "knowingly and intentionally possesses a controlled substance." Tex. Health & Safety Code Ann. § 481.121(a) (Vernon Supp. 2001). The State must prove that the accused exercised care, control and management over the contraband. Nunn v. State, 640 S.W.2d 304, 305 (Tex. Crim. App. 1982). The evidence must affirmatively link the appellant to the contraband such that a reasonable inference arises that the accused knew the substance existed and exercised control over it. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). "When an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Id. at 47; Garza Gonzalez v. State, 783 S.W.2d 774, 777 (Tex. App.--Corpus Christi 1990, no pet.).

Only circumstantial evidence affirmatively links appellant with the marihuana. Appellant was never found with the marihuana and never laid claim to the marihuana. He did provide authorities with the name of the owner of the marihuana. Appellant also checked two bags that contained the marihuana at the airport, and put labels with his name and address on the bags. He had a ticket and received a boarding pass for the flight, but left the boarding area inexplicably, right before he was supposed to board and did not get on the flight. Appellant later claimed ownership of the bags themselves, but not their contents, and claimed that he was paid to transport the bags, but not their contents.

Circumstantial evidence is reviewed like direct evidence; the reviewing court determines whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465, 471 (Tex. Crim. App. 1983). A conviction based on circumstantial evidence does not require a "moral certainty [that] actually exclude[s] every hypothesis that the act was committed by another person," but may not be sustained if the circumstances only provide a strong suspicion of guilt. Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983). Under the facts of this case, there is sufficient evidence for the jury to link appellant to the marihuana. We overrule appellant's first and second issues.

In his third issue appellant argues that there was no evidence that appellant departed from custody without permission so as to be guilty of escape. To obtain a conviction for this offense, the State must prove that appellant was under arrest, in custody, and that appellant had not received permission to depart from custody. Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App. 1995). Appellant bases this argument on the fact that he was alone with one police officer when he left custody, and the fact that this police officer did not testify because he died shortly before trial. The jury heard testimony from other officers as to the deceased officer's immediate request for help and the search that followed. We overrule appellant's third issue.

We AFFIRM the judgment of the trial court.

______________________

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this 16th day of March, 2001.

1. Tex. Health & Safety Code Ann. § 481.121(a) (Vernon Supp. 2001).

2. Tex. Pen. Code Ann. § 38.06 (Vernon Supp. 2001).