DISSENTING OPINION I dissent to the majority's conclusion that the trial judge did not abuse his discretion in ordering appellant's probation revoked. I would hold the evidence insufficient to support a finding that appellant had intentionally and knowingly possessed a usable quantity of marihuana. *Page 707
The only evidence brought out at trial which could be viewed as even marginally incriminating was that:
(1) Appellant accompanied Gonzalez to the home of an unnamed friend where a purchase of marihuana was made.
(2) Marihuana was visible in the house and there was an odor of burnt marihuana in the house.
(3) Appellant drove Gonzalez' car at a time when Gonzalez was in possession of a wrapped bag of marihuana.
The arresting officer testified that as appellant and Gonzalez left the house with Gonzalez carrying a bag, "they were just walking down the sidewalk and kept looking around to the east and to the west there on Avenue A." However, on cross examination the officer admitted that his offense report only stated that Gonzalez was looking around nervously and mentioned nothing about appellant. He also admitted that his recollection of events would be fresher at the time the offense report was made than at the time of trial.
To establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew that the matter possessed was contraband. Rice v. State, Tex.Cr.App., 548 S.W.2d 725. The State has failed to establish either of these elements sufficiently, even under the lower standard of proof involved in a probation revocation proceeding. Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293.
The fact that appellant was present in the car when the contraband was found is not sufficient to show possession in the absence of direct or circumstantial evidence connecting him to the prohibited item. Hernandez v. State, Tex.Cr.App., 517 S.W.2d 782. As in Hernandez, there was no evidence presented here to directly link appellant to the contraband. He made no attempt to escape, no incriminating statements to the police at the time of arrest, and no gestures in the direction of the marihuana. Additionally, the marihuana was not in plain view at the time of arrest and Gonzalez and appellant each testified that the entire time they were at the unnamed friend's home appellant was in the bathroom because he was ill.
In reversing the recent case of Presswood v. State, Tex.Cr.App., 548 S.W.2d 398, 399 on sufficiency grounds, this Court noted:
"The only evidence in the record tending to establish possession was merely that the appellant was the driver of the automobile at the time Officer Keesy approached it. The record does not reflect how long appellant was in possession or control of the automobile, nor does it show to whom the automobile belonged. The marihuana was found wrapped inside a bank bag which was in the glove compartment of the automobile. There was no marihuana found on either the appellant or his passenger. There is no testimony indicating that either the appellant or his passenger was under the influence of marihuana. Neither Officers Keesy or Kuhn testified that they smelled the odor of marihuana in or around the automobile."
As in Presswood, the facts here indicate that no marihuana was found on either appellant or the passenger; there was no testimony that either of the men was under the influence of marihuana; and the arresting officers did not testify that they smelled the odor of marihuana in or around the car. Unlike Presswood, the record here clearly shows that appellant was in possession of the car for only a few blocks prior to his arrest and it further shows that Gonzalez, at whose feet the contraband was found in a wrapped bag, was the car's owner and had asked appellant to drive.
The record before us is barren of direct evidence establishing appellant's possession of the controlled substance. Furthermore, the variety of inferences which could be drawn from the circumstantial evidence was such that the evidence was insufficient to support a finding that appellant knowingly possessed marihuana.
Lastly, the record is also devoid of evidence that appellant was familiar with the *Page 708 odor of marihuana in any state: fresh, burning, or burnt. There was no testimony that appellant was present in any room where marihuana was openly displayed or that he would recognize the substance as such. Once again, I must dissent to the practice of imputing knowledge of the smell of marihuana to citizens who have not had the benefit of police academy training. See Armstrong v. State, Tex.Cr.App., 542 S.W.2d 119; dissenting opinion in Duff v. State, Tex.Cr.App., 546 S.W.2d 283.
Because the State failed to meet either prong of its burden under Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127, and the cases discussed above, I would find an abuse of discretion in the trial judge's order revoking probation. For these reasons, I respectfully dissent.
ROBERTS, Judge, joins.