Appellant's conviction was reversed on original submission by a panel of this court. On the State's Motion for Rehearing, the panel decided, with Justice Whitham dissenting, to withdraw its previous opinion and affirm. A majority of the court sitting en banc then voted to approve the opinion Judge Robertson had written on rehearing for the panel majority. I respectfully disagree with that decision. Although I concur with Justice Whitham's opinion, I believe there are additional reasons why the evidence in this case is insufficient to support the conviction.
The Court of Criminal Appeals recently reversed a conviction for possession of heroin on facts quite similar to this case. In Rhyne v. State, 620 S.W.2d 599 (Tex.Cr.App. 1981), the police arrested appellant after they discovered heroin during a legally authorized search of private residence where he lived with two other people, Hodge and Wesson. Appellant was the lessee of the residence and the utilities were in his name. When the officers arrived, they observed Wesson running into a bedroom, where he was found to have a pistol. Appellant, meanwhile, was seated in the living room. He was not named in the search warrant and no drugs were found on or about his person. Six packages of heroin were, however, discovered behind a shingle on the exterior of the house. R. J. Mack, one of the officers who executed the search warrant, testified that he had purchased drugs at the house on twelve different occasions while working in an undercover capacity. On two or three of those occasions, appellant was present at the house when Mack announced he was there to "score," but Mack testified appellant had nothing to do with the sale or delivery of narcotics on those occasions.
After discussing the law of "affirmative links" and circumstantial evidence, the Court analyzed the evidence to determine whether the evidence was sufficient to exclude every reasonable hypothesis except appellant's guilt:
620 S.W.2d at 601.In the instant case, there was no showing that appellant encouraged Wesson to sell narcotics. Appellant was not shown to have exercised any control over the heroin which was recovered outside the house. There were no furtive gestures by appellant and he was not shown to have been under the influence of narcotics. Appellant did not attempt to escape at the time the warrant was executed. Finally, the heroin was not in plain view, but rather hidden under a shingle on the exterior of the home.
While there is a suspicion or probability of appellant's guilt, we conclude that the circumstances proven do not exclude the reasonable hypothesis that appellant was merely present where the action was taking place. We find the evidence insufficient to support appellant's conviction (Emphasis added).
In the instant case, the evidence of appellant's control over the premises was even weaker than in Rhyne. There, appellant rented the residence and had the utilities in his name; here, appellant was merely an occupant of the premises, which the State's evidence showed was a public gambling house, with no one in charge. In Rhyne, a police officer testified that he had purchased narcotics on the premises twelve different times, although not from appellant; here, all we know is that appellant had monetary transactions with several known heroin addicts. As in Rhyne, appellant in this case made no furtive gestures, was not under the influence of drugs, had no needle marks on his arms, and had no drugs on his person.
The majority opinion in the present case essentially finds that appellant's proximity to the contraband was sufficient to exclude every reasonable hypothesis other than guilt. It states:
*Page 278An examination of the record in the present case shows that there is sufficient evidence to affirmatively link appellant to the contraband at the time the officers executed the warrant. The contraband was in plain view from
appellant's location and no other person was close to the contraband. Appellant had an unspecified amount of money on his person and had been observed selling something to fourteen known heroin addicts earlier that day [Emphasis in majority opinion].
Taking these "links" in reverse order, it was undisputed that appellant had money, but not drugs, on his person, just as did every one of the fourteen other people who occupied this gambling house at the time of the search. There is no evidence that the contraband was in plain view "from appellant's location," as asserted by the majority. Officer Foster testified that appellant was about two feet from the wastepaper basket containing the contraband. Officer Burkett testified that the trash container was about "six to eight inches maximum" from appellant's right leg. Neither of these officers testified what could be seen from "appellant's location," whether that was six inches or two feet away. Rather, officer Burkett testified what he observed standing directly over the trash container:
Q: Did you have occasion to look inside the basket and see what was in there?
A: Yes, sir, I did.
Q: If you were just looking straight down into that basket, who (sic) could you see?
A: There was a lot of trash in there. There was also a plastic baggie, clear baggie, sandwich type bag that contained thirteen (13) red capsules that appeared to be Heroin.
Q: As you looked down, could you see those? Were the capsules sitting on top of the trash or were they buried underneath?
A: They were lodged between the side of the trash can and top of the trash.
Q: But you could see them where you were standing over the basket ; is that correct?
A: Yes, sir.
Q: Could you see that there were capsules inside the bag?
A: Yes, sir.
Q: They were visible to your eyes; is that right?
A: Yes, sir.
[Emphasis added]. That is the only evidence of "plain view."
Furthermore, there is no evidence that even if the pink capsules were visible to appellant at his location, he knew them to be heroin. Officer Foster described the condition of the contraband when discovered as follows:
Q: Was the Heroin contained in a plastic container?
A: If I'm not mistaken, Officer Burkett was the one that found it. If I'm not mistaken, it was in a plastic bag, possibly a cigarette pack, cellophane portion.
Q: Was it in capsules?
A: Right, pink capsules.
Q: So it was a powdery substance inside pink capsules inside a cellophane sack?
A: That's correct.
It was later stipulated that the powdery substance inside the pink capsules was heroin.
In a related context, the Court of Criminal Appeals has held that an officer's warrantless seizure of a balloon containing heroin could not be sustained under the "plain view" doctrine where the officer failed to testify that he was cognizant of the "well known" fact that heroin is kept in balloons. Brown v. State, 617 S.W.2d 196, 200 (Tex.Cr.App. 1981). See also Boyd v. State, 621 S.W.2d 616, 617 (Tex.Cr.App. 1981). To reconcile the Brown decision with the majority holding here that the heroin was in "plain view," we must impute to the Court of Criminal Appeals a distinction between the meaning of "plain view" in warrantless search and seizure cases and "plain view" in possession of contraband cases. Nothing in the cases suggests to me that the Court of Criminal Appeals intends such a distinction. On the contrary, the Court's opinion in Sullivan v. State, 626 S.W.2d 58 (Tex.Cr.App. 1981), indicates that the State's attempt to *Page 279 justify a warrantless seizure of methamphetamine under the "plain view" doctrine is measured by the same evidentiary tests applied in possession of contraband cases: whether the accused attempted to escape, made furtive gestures, or was apparently under the influence of an intoxicating substance. I believe that heroin in the pink capsules here was no more in "plain view" than the heroin in opaque party balloons was in Brown.
The only real link found by the majority is the accused's proximity to the contraband: i.e., that he was within six inches of it and "no other person was close" to it. While "close" is a matter of degree, and appellant was admittedly closer than anyone else, Officer Foster testified without contradiction that 4 or 5 people were within six to eight feet of the trash receptacle.
I do not believe appellant's proximity to the contraband, under these circumstances, excludes every reasonable hypothesis except his guilt. I would, therefore, reverse the conviction and direct an acquittal.