Henry Penn Willis, III v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-362-CR



HENRY PENN WILLIS, III,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 91-227, HONORABLE TED BUTLER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing fifty pounds or less but more than five pounds of marihuana. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.121 (West 1992). The jury assessed punishment at imprisonment for twenty years and a $10,000 fine.

On the afternoon of August 9, 1991, a helicopter pilot spotted what he believed to be marihuana plants growing on a farm in rural Caldwell County. As the pilot watched, a man and woman emerged from the nearby farm house, apparently in response to the appearance of the helicopter. The woman ran to the plot where some of the marihuana plants were growing and began to pull them and carry them into a shed. The man, according to the pilot's testimony, went to a Dodge pickup truck and drove away. Officers responding to the pilot's call drove to the farm and arrested the woman, identified as appellant's wife, in the shed. The officers found ninety-nine marihuana plants, some eight to twelve feet tall, on the property. Some of these plants were growing in a garden a short distance from the house, while others were planted in various locations on the remainder of the property. The plants were well-watered and were obviously being cultivated. Other marihuana was found drying on a screen near the shed. Scales, firearms, plastic bags, and loose marihuana were found inside the house.

The real property in question was owned by appellant and his wife. Appellant was also shown to own a Dodge pickup and the numerous vehicles that were found on the property. Bills addressed to appellant and his wife were found in the house, along with men's and women's clothing.

In his first point of error, appellant contends that the evidence is legally insufficient to sustain the judgment. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). In order to prove unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, and management over the contraband with knowledge that the substance was contraband. Castellano v. State, 810 S.W.2d 800, 805 (Tex. App.--Austin 1991, no pet.). Possession of contraband need not be exclusive, and evidence that the accused jointly possessed the contraband with another is sufficient. Id. If the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that he had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively connect him to the contraband by sole or joint possession. Id.

The jury could reasonably infer from the evidence that appellant and his wife lived together at the farm and that appellant was the man seen leaving the house by the helicopter pilot. Although the pilot testified that the man went directly from the house to the pickup, two officers who responded to the pilot's call, Robert Nestoroff and Dwayne Steen, testified that the pilot radioed that the man and the woman were both pulling marihuana plants. The jury, as trier of fact, could believe that the officers' memories were more reliable than the pilot's. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). The testimony that appellant was pulling the marihuana plants from the ground is sufficient to affirmatively connect appellant to the marihuana and to support the conclusion that appellant knowingly exercised control over the marihuana. In addition, the evidence shows that ninety-nine marihuana plants, some twelve feet tall, were being cultivated on appellant's farm and within view of the house appellant was shown to occupy. Additional marihuana was found drying near the house and in a plastic bag inside the house. Balance scales of the sort used to weigh contraband also were found in the house. We conclude that a rational jury could find beyond a reasonable doubt that appellant knowingly possessed the marihuana plants and overrule the first point of error.

In point of error two, appellant urges that the district court erred by including in its charge an instruction on the law of parties. The charge was given over appellant's objection that there was no evidence that he was criminally responsible for the acts of his wife. In point of error one, we concluded that the evidence is sufficient to sustain appellant's conviction as a primary actor. Therefore, accepting as true appellant's contention that the evidence did not raise the issue of his guilt as a party, the charge error was harmless. Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986); Govan v. State, 682 S.W.2d 567, 570-71 (Tex. Crim. App. 1985); see Johnson v. State, 739 S.W.2d 299, 303-05. Point of error two is overruled.

In his fourth point of error, appellant argues that Nestoroff should not have been permitted to testify that the helicopter pilot reported seeing both the man and the woman pulling the marihuana plants. The district court admitted the testimony over appellant's hearsay objection, on the theory that the pilot's statement was an excited utterance. Tex. R. Crim. Evid. 803(2). We need not determine whether the court's ruling was correct, because the record reflects that the other officer, Steen, testified to the same effect without objection. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Point of error four is overruled.

In his third point of error, appellant complains of the prosecutor's argument at the punishment stage of trial. Appellant contends that the prosecutor, on several occasions, referred to him as a drug dealer and asked the jury to assess punishment on that basis. An examination of the statement of facts discloses that appellant voiced only two objections during the prosecutor's argument. After the first objection, the court asked the prosecutor to rephrase his argument. After the second, the court advised the jurors to rely on their own recollection of the facts. In neither instance did appellant obtain a direct ruling by the court. Tex. R. App. P. 52(a). Appellant did not ask the court to instruct the jury to disregard any of the allegedly improper statements. We conclude that the statements of the prosecutor, if error, were not so prejudicial as to warrant reversal despite appellant's failure to preserve them for review. Point of error three is overruled.

In point of error five, appellant asserts that he was denied effective assistance of counsel because his attorney failed to file a sworn motion for probation. Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a) (West Supp. 1993). This Court has held that where, as in this cause, the defendant is eligible for jury-recommended probation, counsel's failure to file a sworn motion constitutes ineffectiveness. May v. State, 660 S.W.2d 888 (Tex. App.--Austin 1983), aff'd, 722 S.W.2d 699 (Tex. Crim. App. 1984).

At a hearing outside the jury's presence, defense counsel and his secretary testified that a motion for probation was prepared and signed by appellant under oath. Counsel further testified that he personally delivered the sworn motion to the district clerk's office. The motion was never made a part of the record, however, and counsel took full responsibility for having failed to make sure that it was on file before trial began. At the conclusion of the hearing, the court, noting that the jury had been voir dired on probation by both parties, ruled that the jury would be charged on probation despite the absence of a proper motion. The relevant portion of the charge was modified to read, "In this case the defendant's attorneys pray that in the event he is convicted that he be granted probation."

We hold that the record before us demonstrates that defense counsel rendered reasonably effective assistance at the punishment stage. Ex parte Walker, 777 S.W.2d 427, 430-31 (Tex. Crim. App. 1989); Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). This cause is distinguishable from May because, at defense counsel's urging, the district court submitted the question of probation to the jury despite the procedural error. There is nothing in the record to support appellant's argument that "the jury, instructed as they [sic] were, did not give fair and appropriate attention to the fact that he had sworn his eligibility for probation and that he, himself, not his attorneys, prayed for probation." While the wording of the probation charge was unusual, we do not share appellant's belief that the jury was aware of the irregularity, much less that the jury assessed the punishment it did because of it. ⁽¹⁾ Point of error five is overruled.

Finally, appellant complains that the district court should not have charged the jury on probation in the absence of a sworn application. If this was error, it was clearly beneficial to appellant and therefore harmless beyond a reasonable doubt. Tex. R. App. P. 81(b). Appellant also complains of the rewording of the probation charge discussed above. But appellant did not object to the charge on this basis and the record does not support the conclusion that appellant was egregiously harmed by the alleged error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opinion on rehearing). The sixth point of error is overruled.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: June 2, 1993

[Do Not Publish]

1. Were we to apply the second prong of the test enunciated in Strickland v. Washington, 466 U.S. 688 (1984), we would hold that appellant has failed to demonstrate that there is a reasonable probability that the result of the proceeding would have been different but for the complained-of acts of counsel. See Ex parte Felton, 815 S.W.2d 733, 736-37 n.4 (Tex. Crim. App. 1991); see also Rosales v. State, 841 S.W.2d 368, 376-378 (Tex. Crim. App. 1992).