Troyer v. State , 516 S.W.2d 163 ( 1974 )

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of marihuana. After the jury returned a verdict of guilty on September 16, 1972, punishment was assessed by the court at seven (7) years on October 6, 1972, following a pre-sentence investigation.

Appellant’s first two contentions are directed to the court’s failure to grant his requested charge to the effect that appellant could not be convicted unless it was shown that he knew he was in possession of marihuana.

Appellant’s requested charge on the affirmative defense of lack of knowledge that he possessed marihuana and his objection to the court’s charge for failure to contain such an instruction were both in writing and timely filed.

The record reflects that officers went to appellant’s apartment on Rampart Street in Houston on May 9, 1972, for the purpose of arresting appellant on a felony theft warrant. Upon arresting appellant in his apartment, officers observed a baggie of marihuana on a coffee table. A brown paper bag containing marihuana was found in the kitchen. In addition, traces of marihuana were found in a bowl in the kitchen, and partially smoked marihuana cigarettes and an LSD tablet were found in the living room.

Appellant, testifying in his own behalf, stated that he had occupied the apartment in question for six or seven months, and that he used same as an office for his swimming pool business. Appellant stated that six of his employees had keys to his apartment in order that they might pick up information about jobs left there by him. In addition, his bookkeeper had a key, and a key was left outside the apartment for employees who did not have one. Appellant related that he had been gone from the apartment the entire day in question, and had returned to his apartment about five minutes before the appearance of the officers. Upon entry of the apartment, appellant found same in “a mess and stinking,” and called one Luella Loy, who frequently came to the apartment to work on his books in the afternoon, to see if she knew anything about the apartment being in the condition it was in and if she knew anything about anyone having a party in the apartment. According to appellant, he was talking on the phone to Loy when the officers arrived. The record reflects appellant testified as follows regarding knowledge of the marihuana in his apartment:

“Q. All right. Now, did you have any marijuana in your apartment on May 9th, 1972?

“A. I personally had none. Of my knowledge there was none.

“Q. If marijuana was found in your apartment on May 9th, 1972, were you aware of it ?

“A. Would you repeat that ? I’m sorry, I didn’t hear you.

“Q. If marijuana was found in your apartment on May 9th, 1972, were you aware of it ?

“A. Noj sir. Not until it was found.

“Q. Do you have any knowledge of who may have placed that marijuana in your apartment?

“A. No, sir.”

The court in its charge defined possession as “the actual care, control and management of the property, either alone or acting with another person or other persons.” The jury was instructed that they could not convict unless they found that defendant possessed the marihuana. An instruction was given on the law of circumstantial evidence.

The State had the burden of proving: (1) that the appellant exercised actual care, control, and management over the contraband, and (2) that he knew the object which he possessed was contraband. Collins v. State, Tex.Cr.App., 502 S.W.2d 743; Valdez v. State, Tex.Cr.App., 481 S.W.2d 904.

The court charged the jury only as to the possession element of the offense. Nothing in the charge mentions lack of knowledge. Where the issue is properly raised, failure to give an affirmative charge on the knowledge issue is reversible error. Ramos v. State, Tex.Cr.App., 478 S.W.2d 102; 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, 137 Tex.Cr.R. 14, 127 S.W.2d 905.

The testimony of the appellant clearly raised the defense of lack of knowledge. Whether the defense was true or not was a question for the jury. Appellant had a right to have his defensive theory submitted to the jury. Fawcett v. State, supra. The trial court’s refusal to charge on the defensive theory requires reversal.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.