Allen v. State

OPINION

HILL, Justice.

James Dwayne Allen appeals from the revocation of his probation for the possession of amphetamine of less than twenty-eight grams. In his sole point of error, Allen contends that the trial court abused its discretion by revoking his probation on that ground because the evidence was insufficient to prove that he committed that offense.

We reverse and order the revocation set aside, order that the motion to revoke alleging that ground of revocation be dismissed with prejudice, and order that Allen’s probation be reinstated, because we find that the evidence was insufficient to establish that Allen possessed amphetamine as alleged in the motion to revoke.

Allen was stopped on June 2, 1988 in the City of Arlington for a routine traffic violation. He was arrested when the police officer making the stop observed the handle of a double-edged dagger sticking out from the armrest of the front seat. When the officer conducted an inventory search, he found a closed film canister containing baggies of amphetamine. The canister was located underneath the front-seat armrest located between Allen and his passenger. Allen had borrowed the car, which belonged to his father, to move some belongings of the passenger. The car contained numerous items of clothing belonging to the passenger.

Allen testified and denied any knowledge concerning the drugs. He said that a white powdery substance and a straw were recovered from the person of his passenger. He acknowledged that he had had a drug problem in the past, but indicated that he believed he was over it. Neither Allen’s father nor the passenger testified at the hearing.

We find that the trial court abused its discretion by revoking Allen’s probation, because we find that the evidence is insufficient to establish that Allen possessed the amphetamine in question. Under the evidence, it is just as likely that Allen’s father or his passenger was in sole *740possession of the amphetamine as it was that Allen possessed it, either on his own or jointly with his father, the passenger, or both. There is no evidence to show that Allen was aware the amphetamine was there. See Humason v. State, 728 S.W.2d 363, 367 (Tex.Crim.App.1987). We find that the evidence is insufficient, even though we acknowledge that in a revocation hearing, the burden of proof is by a preponderance of the evidence. Martin v. State, 623 S.W.2d 391, 393 (Tex.Crim.App. [Panel Op.] 1981).

The State argues that an affirmative link was shown between Allen and the amphetamine because Allen was driving the vehicle, and because amphetamine was an expensive drug that is unlikely to have been left by some owner of the drug. The State appears to rely on the case of Aldridge v. State, 482 S.W.2d 171 (Tex.Crim.App.1972), for its contention that the evidence is sufficient in view of the fact that the drug was near Allen and that he was the driver of the car. We note that an important factor in Aldridge was the fact that the officer could smell marijuana within the vehicle, thereby offering some proof that Aldridge, who was driving his mother’s vehicle, was aware of the marijuana located in the car. In this case, there is no comparable evidence showing that Allen would have had any knowledge of the amphetamine located within the vehicle.

The State also argues that there is an affirmative link in the sense that the substance was amphetamine, an expensive drug that is unlikely to have been left by some other owner of the drug. However, the State offers no case in support of that link. If that affirmative link would ever have validity, it would not under the facts of this case. The car belonged to Allen’s father. The amphetamine was hidden in a container, which in turn was hidden underneath the arm rest in the front seat. It is not, therefore, altogether unlikely that Allen’s father might have left the amphetamine where the officer found it. Allen’s passenger was seated in the passenger seat, right next to the amphetamine. If he were the owner, it is not unlikely that he would have left it where the officer found it. We sustain Allen’s sole point of error.

We reverse and set aside the order granting revocation of probation, order the motion to revoke alleging that ground of revocation to be dismissed with prejudice, and order that Allen’s probation be reinstated.