Donald Ray Durant v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Donald Ray Durant Appellant Vs. No. 11-01-00044-CR B Appeal from Collin County State of Texas Appellee The jury found appellant guilty of possessing less than 5 pounds, but more than 4 ounces of marihuana. The trial court assessed appellant=s punishment at confinement for 8 years. We affirm. Appellant was the owner and driver of an automobile that was stopped by a police officer. The officer testified that, when he approached the passenger=s side window, he smelled a strong odor of unburned marihuana. The officer found a plastic bag containing marihuana under the front passenger=s seat. The officer testified that the passenger said the marihuana belonged to him. The plastic bag contained 15.26 ounces of marihuana. In three related points of error, appellant contends that the trial court erred in overruling his motion for an instructed verdict. Appellant=s complaint is an attack upon the sufficiency of the evidence to support the conviction. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Cr.App.1997). It is clear from appellant=s brief that he is contending that the evidence is legally insufficient. In order to determine if the evidence is legally sufficient, this court must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Cr.App.1995). In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control, or management over the substance and that the accused knew that the substance was contraband. Brown v. State, 911 S.W.2d 744 (Tex.Cr.App.1995). Mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance. Harris v. State, 994 S.W.2d 927, 933 (Tex.App. - Waco 1999, pet=n ref=d). The court=s application paragraph in the charge included instructions to the jury regarding appellant=s conduct both as a primary actor and as a party responsible for an offense committed by the conduct of another person. See TEX. PENAL CODE ANN. '' 7.01(a) & 7.02(a) (Vernon 1994). The officer who stopped appellant=s car testified that, when he stopped appellant=s car at night, appellant got out of his car and walked directly back to the officer=s car. The officer stated that this was unusual and that he thought that appellant had something to hide inside appellant=s automobile. When the officer approached the passenger=s side of the automobile, he could smell a strong odor of unburned marihuana emanating from the open passenger=s window. The officer testified that he was familiar with the smell of unburned and burned marihuana. When the officer asked appellant for an explanation, appellant replied that someone had been smoking marihuana in the car during the day. Appellant told the officer that there was no marihuana in the car and gave the officer consent to search the vehicle. The officer noticed a plastic bag sticking out from under the passenger=s seat. When the officer pulled the bag out and opened it, he found a clear plastic bag containing marihuana. The passenger stated that the marihuana belonged to him. No identifiable fingerprints were recovered from the plastic bag. A second officer arrived on the scene, and that officer also testified that he could smell the marihuana while it was in the plastic bag in the car. The second officer stated that he was watching appellant and the passenger while the car was being searched and that appellant and the passenger Akept their heads on a real nervous swivel watching@ the officer search the car. We hold that the evidence is legally sufficient to support the conviction of appellant as the primary actor and as a party to the offense. The automobile that appellant owned and was driving had a strong odor of marihuana when it was stopped by the officer. Appellant quickly got out of the car and met the officer as the officer approached appellant=s automobile. The marihuana was in a plastic bag under the front passenger=s seat, and a portion of the plastic bag was sticking out from under the seat. Appellant and the passenger appeared nervous during the search. See Dade v. State, 956 S.W.2d 75, 79 (Tex.App. - Tyler 1997, pet=n ref=d); Ortz v. State, 930 S.W.2d 849, 853-54 (Tex.App. - Tyler 1996, no pet=n); Martinets v. State, 884 S.W.2d 185, 187-88 (Tex.App. - Austin 1994, no pet=n); Sendejo v. State, 841 S.W.2d 856, 859-60 (Tex.App. - Corpus Christi 1992, no pet=n). Also, the evidence is legally sufficient to prove that appellant acted with intent to promote or assist in the commission of the offense by aiding or attempting to aid the passenger in the commission of the offense. Appellant=s three points of error complaining that the trial court erred in overruling his motion for instructed verdict are overruled. The judgment of the trial court is affirmed. AUSTIN McCLOUD SENIOR JUSTICE October 18, 2001 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Wright, J., and McCall, J., and McCloud, S.J.[1] [1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.