Cameron v. State , 1985 Tex. App. LEXIS 12461 ( 1985 )

OPINION

DORSEY, Justice.

Appellant was convicted by a jury of possession of methamphetamine, a controlled substance, sentenced to ten years in the Texas Department of Corrections and assessed a $10,000.00 fine. The sentence was probated.

Appellant’s first ground of error challenges the sufficiency of the evidence to support the jury’s verdict that he was guilty of intentionally and knowingly possessing methamphetamine. Possession is the “actual care, custody, control, or management” of the controlled substance. TEX.PENAL CODE ANN. § 1.07(a)(28) (Vernon 1974).

On October 4,1984, the police executed a search warrant of appellant’s residence. The search resulted in the seizure of a vial containing methamphetamine from the purse of Sharon Stanford, several syringes, and a vial of an unknown liquid that was found not to be a controlled substance. The purse was found in an upstairs bedroom. Three persons were present when the police arrived: appellant, Sharon Stanford, and Mick McCall. As far as we can ascertain, McCall and appellant were upstairs and Sharon Stanford was downstairs when the police entered. The only methamphetamine or controlled substance found was that taken from Mrs. Stanford’s purse. The seized drug was tested and admitted into evidence.

Mrs. Stanford testified for the State identifying the purse as hers in which the contraband was found. She admitted that she had been at the appellant’s residence for a number of hours, that she did not bring methamphetamine with her when she arrived, that the appellant had some and showed her, and that she, Mr. McCall and the appellant had all injected methamphetamine earlier that evening. However, she did not testify to whom the drugs belonged that were seized from her purse. Although she testified that she did not have drugs in her possession when she arrived, no explanation of her later possession was given.

In reviewing the sufficiency of the evidence, the relevant standard is one developed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to wit: “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.” Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Crim.App.1985); Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). That standard for review on appeal is the same for both direct and circumstantial evidence cases. McGoldrick, 682 S.W.2d at 577; Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983).

“[I]f the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” Similarly, “if there is a ‘reasonable hypothesis’ other than the guilt of the accused, then it cannot be said that the guilt has been shown ‘beyond a reasonable doubt.’” McGoldrick, 682 S.W.2d at 577; Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983); Oaks v. State, 642 S.W.2d 174, 179 (Tex.Crim.App.1982).

The evidence in the instant case raises the reasonable hypothesis that Sharon Stanford was in possession and control of the drugs that were in her purse when they were seized. She did not deny that they were hers; only that she did not have the drugs when she arrived. The source of the drugs could have been any of three persons present. Stanford did not testify that the drugs belonged to appellant.

The State argues that the testimony of Sharon Stanford is sufficient in and of itself to prove at least joint possession of the drugs. The evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it. Nunn v. State, 640 S.W.2d 304 (Tex.Crim.App.1982). “‘Possession’ means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed.” McGoldrick, 682 S.W.2d at 578. Mere presence at the place where the contraband is found, if it is not in plain view, does not by itself justify a finding of possession. Meeks v. State, 692 S.W.2d 504 (Tex.Crim.App.1985); McGoldrick, 682 S.W.2d at 578; Woods v. State, 533 S.W.2d 16 (Tex.Crim.App.1976); Hernandez v. State, 517 S.W.2d 782 (Tex.Crim.App.1975); Meyers v. State, 665 S.W.2d 590 (Tex.App.—Corpus Christi 1984, pet. ref’d).

We fail to find any evidence that links the seized drugs that form the basis of this prosecution to the appellant. Appellant was not shown to have exercised any control over the seized methamphetamine. Flores v. State, 650 S.W.2d 429 (Tex.Crim.App.1983); Rhyne v. State, 620 S.W.2d 599 (Tex.Crim.App.1981).

Although there is evidence that appellant had earlier possessed methamphetamine and that he and the two others present used the drugs sometime earlier in the evening, we do not think that such is sufficient to establish that appellant was guilty of actual possession of the seized vial of drugs that formed the basis for this prosecution. Nunn, 640 S.W.2d at 305.

“Proof which amounts only to a strong suspicion or mere probability is insufficient. ... From these facts only a strong suspicion is created that appellant was guilty of the offense charged. This is insufficient to sustain the conviction.” Oaks, 642 S.W.2d at 179. Appellant’s first ground of error is sustained. Because the evidence is insufficient to support the conviction, there can be no further prosecution of this cause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Flores v. State, 650 S.W.2d 429 (Tex.Crim.App.1983) As this is dispositive of the appeal, we decline to address appellant’s remaining ground of error.

The judgment of the trial court is REVERSED, and the appellant is ORDERED ACQUITTED.