William Patrick Jones v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00266-CR



William Patrick Jones, Appellant

v.

The State of Texas, Appellee



FROM THE COUNTY COURT OF SAN SABA COUNTY NO. 5,319, HONORABLE HARLEN BARKER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing less than two ounces of marihuana and imposed a $500 fine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.121, 1989 Tex. Gen. Laws 2230, 2939 (Tex. Health & Safety Code Ann. § 481.121, since amended). Appellant contends the county court erred by overruling his motion to suppress evidence and that the evidence is legally insufficient to sustain the verdict.

Appellant, his brother, Jack Jones, and his father, Glen Jones, own three contiguous tracts of land near Cherokee totalling approximately twenty-six acres. The six easternmost acres belong to Glen Jones, who lives in a house on the property. Nineteen of the remaining twenty acres belong to Jack Jones. Appellant owns one acre in the southwestern corner of the Joneses' property and lives in a cabin thereon. To reach appellant's cabin, one must take a dirt road that passes Glen Jones's house and crosses both his and Jack Jones's land.

There is a fence around the perimeter of the Joneses' property, but no fence separates appellant's one acre from Jack Jones's nineteen acres. A fence between Jack's land and Glen Jones's six acres is "two-thirds gone." Goats belonging to another member of the Jones family graze the entire twenty-six acres.

James Semmler, an investigator with the district narcotics enforcement team, received information from named and unnamed sources that appellant was growing marihuana. Semmler testified, "[T]he allegations were made against Pat Jones, and we -- at the time I didn't know that there was a difference between his property, his dad's property, or I didn't know his dad lived there." Semmler and other officers met Glen Jones at his residence and told him what they had heard. Semmler testified that Glen Jones told them, "Pat lives in the cabin in the pasture directly behind his house, but the property belongs to him [Glen]." Glen Jones gave the officers written consent to search his property. In the consent form, the property is described as "the residence of Glen Jones and Pat Jones."

The officers took the dirt road and parked near appellant's cabin. Following a foot path leading from the cabin, the officers found four freshly watered marihuana plants growing in pots approximately two hundred yards from the cabin. The record reflects that the plants were found on property belonging to Jack Jones. The officers returned to appellant's cabin, where they saw watering buckets and empty pots similar to those in which the marihuana plants were growing. Through an open window, the officers saw a lamp of the type used to grow plants indoors. The officers did not enter appellant's cabin because, as Semmler explained, "Glen Jones cannot give consent to search another adult's living quarters."

Based on Semmler's affidavit summarizing the tips he had received and describing what he had seen, a warrant was issued to search appellant's cabin. Inside, the officers found a shotgun, a condenser and flask, and a quantity of marihuana seeds.

Appellant contends the growing marihuana plants and all the objects found outside appellant's cabin should have been suppressed because Glen Jones was not authorized to consent to the warrantless search of appellant's property. Appellant further argues that the illegality of this initial search tainted the warrant to search inside his cabin and that the evidence found there also should have been suppressed.

Appellant's complaint is limited to the officers' entry onto his one acre of land. Appellant does not claim any expectation of privacy in Jack Jones's property. Because the growing marihuana plants were found during a search of Jack Jones's land, appellant lacks standing to complain of their seizure. The county court did not err by refusing to suppress the plants.

The court also did not err by refusing to suppress the evidence observed by the police during their initial search outside appellant's cabin. The initial entry onto appellant's property was made with the consent of Glen Jones. At the time Glen Jones gave his consent, he told the officers that the property belonged to him. As a general rule, a search is lawful if the police act in good faith reliance on the consent of a person with apparent authority to consent to the search. McNairy v. State, 777 S.W.2d 570, 574 (Tex. App.--Austin 1989), aff'd, 835 S.W.2d 101 (Tex. Crim. App. 1991). The evidence reflects that the Joneses' twenty-six acres are in one contiguous tract with little or no internal fencing. There is no evidence that the officers knew Glen Jones did not own the land on which appellant's cabin was located or that the officers had a reason to doubt the accuracy of Jones's claim of ownership. Because the officers' reliance on Glen Jones's consent to search was objectively reasonable under the circumstances, the search was lawful.

In keeping with the rule that a landlord cannot consent to a search of his tenant's premises, the officers did not enter appellant's cabin until after they obtained a warrant to do so. See McNairy, 835 S.W.2d at 105. Appellant contends this search was unlawful because many of the facts contained in the probable cause affidavit were obtained during the earlier search of the property surrounding the cabin. Because we find that the earlier search was lawful, this argument fails.

Appellant also urges that the probable cause affidavit was inadequate because it does not demonstrate that the unnamed informer was reliable. In addition to the informer's tip, the affidavit also described what the officers observed during their initial search outside appellant's cabin. These observations were sufficient, we believe, to support the magistrate's conclusion that probable cause existed to search appellant's cabin. Because the reliability of the informer was not essential to the probable cause determination, any inadequacy in the affidavit with respect to the informer's credibility is not fatal to the warrant.

Finally, appellant contends that the search warrant did not adequately describe the place to be searched. This contention was not presented to the county court and was therefore not preserved for review. Tex. R. App. P. 52(a). Point of error one is overruled.

Appellant's second point of error is that the evidence is legally insufficient to sustain the conviction. To establish the unlawful possession of a controlled substance, the State must prove that the accused knowingly exercised care, custody, or control over the substance. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Appellant stresses that the marihuana was not growing on his property. There was, however, a trail leading from his cabin to the marihuana, and watering cans and pots like those in which the marihuana was growing were found outside the cabin. In addition, marihuana seeds and a "grow light" were found in appellant's residence. Viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Point of error two is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: March 29, 1995

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