Barry v. State
Barry v. State
Opinion of the Court
Appeal is from a jury conviction for possession of marihuana, a class “B” misdemeanor, on which the court imposed a fine of $200.00 and confinement in jail for three days. The appellant, in his sole ground of error, attacks the sufficiency of the evidence to sustain the conviction. We disagree and thus affirm.
Viewed in the light most favorable to the State, the evidence establishes the following
To sustain this conviction for unlawful possession of marihuana, the State had to prove beyond a reasonable doubt (1) that the appellant exercised care, control, and management over the marihuana; and (2) that appellant knew that the matter possessed was marihuana. Dubry v. State, 582 S.W.2d 841 (Tex.Cr.App. 1979). It is not necessary to prove that he had exclusive possession of the marihuana. Damron v. State, 570 S.W.2d 933 (Tex.Cr.App. 1978). In this case there was no evidence that the appellant rented or owned the premises, nor was any contraband found on his person. Although it is not necessary to prove the appellant had exclusive possession of the marihuana, it must be shown that he exercised some dominion or control over it. Payne v. State, 480 S.W.2d 732 (Tex.Cr.App. 1972). Evidence which shows that he jointly possessed the marihuana with another is sufficient to sustain a conviction. Alexander v. State, 587 S.W.2d 729 (Tex.Cr.App. 1979); Damron v. State, supra; Duff v. State, 546 S.W.2d 283 (Tex.Cr.App. 1977). The presence of the appellant where the marihuana was found does not in itself justify a finding of joint possession. Norman v. State, 588 S.W.2d 340 (Tex.Cr.App. 1979); Waldon v. State, 579 S.W.2d 499 (Tex.Cr.App. 1979); Long v. State, 532 S.W.2d 591 (Tex.Cr.App. 1979).
Since appellant was not in exclusive possession of the premises, it cannot be concluded that he had knowledge of, and control over, the marihuana unless there are additional independent facts and circumstances which affirmatively link him to the marihuana. Wiersing v. State, 571 S.W.2d 188 (Tex.Cr.App. 1978); Herrera v. State, 561 S.W.2d 175 (Tex.Cr.App. 1978); Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App. 1974). Proof of possession may be shown by direct or circumstantial evidence. Collini v. State, 487 S.W.2d 132 (Tex.Cr.App. 1972). The evidence must affirmatively link the appellant to the marihuana in such a manner and to such an extent that it may reasonably be inferred that he knew of the marihuana’s existence and of its whereabouts, and that he exercised care, custody, control or management over it. Dubry v. State, supra; Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App. 1979); Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App. 1979).
An examination of the record before us shows the following affirmative links: the odor of burning marihuana in the bedroom where the appellant was standing in the doorway, Ross v. State, supra; the loose marihuana in the shoe box top was in open view, Hernandez v. State, supra; evidence that appellant was familiar with marihuana so as to recognize it on sight (he had it in his automobile); contraband was found in several places in the apartment, Herrera v. State, supra; the marihuana was conveniently accessible to the appellant, Hahn v. State, 502 S.W.2d 724 (Tex.Cr.App. 1973); and the clothing of the appellant found in the closet of the bedroom where marihuana was found. See Curtis v. State, 519 S.W.2d 883, 886 (Tex.Cr.App. 1975). We conclude that the State met its burden and did sufficiently link appellant to the marihuana seized.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.