OPINION ON STATE'S AND APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW
Appellant Lloyd Dale Martin was arrested along with his wife, appellant June Martha Martin, and their son-in-law Ronald Yarbrough. All three were charged with the offense of aggravated possession of methamphetamine. Ronald Yarbrough entered a plea of guilty to the offense and was sentenced to twenty years' confinement and a $10,000.00 fine. His case is not before us. Appellants Lloyd Dale Martin and June Martha Martin entered pleas of
On original submission to the Beaumont Court of Appeals, both Lloyd Dale Martin's and June Martha Martin's convictions were reversed because the record did not contain proper jury waivers with respect to the punishment phase of their trial. The Court of Appeals, in an unpublished opinion, found that the trial court erred in assessing punishment for both appellants and thus reversed their cases and remanded them for a new trial. Martin v. State, No. 09-83-118 CR, (Tex.App.-Beaumont, delivered May 23, 1984). Appellant Lloyd Dale Martin filed a motion for rehearing asking that the Court of Appeals consider his challenge to the sufficiency of the evidence. The Court of Appeals did so and, in another unpublished opinion, found the evidence to be such that the jury could have concluded that Lloyd Dale Martin was guilty of either sole or joint possession of a controlled substance. Martin v. State, No. 09-83-118 CR, (Tex.App.-Beaumont, delivered July 11, 1984) (Opinion on Rehearing).
We granted appellant Lloyd Martin's petition for discretionary review to review the Court of Appeals' decision as to the sufficiency of the evidence. We also granted the State's petition for discretionary review in both Lloyd Martin's case and June Martin's case to review the Court of Appeals' decision regarding the jury waiver issue.
I. Lloyd Dale Martin
We borrow from the summary of the facts contained in the Court of Appeals opinion on rehearing:
Other evidence showed that the Martins' car was not searched until some one and a half hours after the authorities had arrived at the premises. Throughout this time, the car had been unlocked and the driver's window rolled down. Further evidence showed that when appellant arrived at the scene on his motorcycle, he was met by a deputy sheriff who escorted him into the residence.
The jury was instructed that they could convict Lloyd Martin either as a sole actor or as a party with his wife, June Martin.
In reviewing sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the judgment. Gonzales v. State, 689 S.W.2d 900 (Tex.Cr.App.1985). The critical inquiry is whether, after viewing the evidence, any
Where an accused is charged with 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 the matter was contraband. Nunn v. State, 640 S.W.2d 304 (Tex.Cr.App.1982).
Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. McGoldrick v. State, 682 S.W.2d 573 (Tex. Cr.App.1985); Rodriguez v. State, 635 S.W.2d 552 (Tex.Cr.App.1982). However, when the theory of prosecution is that the accused or another acted together in possessing a narcotic drug, the evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it. McGoldrick v. State, supra; Rodriguez v. State, supra. Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession, or constitute one a party to an offense. McGoldrick v. State, supra.
In order to prove that an accused acted as a party to the offense, the State must prove that the accused acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. V.T. C.A., Penal Code, Section 7.02(a)(2).
We find the instant case comparable to the fact situation in Damron v. State, 570 S.W.2d 933 (Tex.Cr.App.1978). In Damron, the evidence revealed that while Damron was away from his home, a search warrant was executed at the home. The only persons present at that time were appellant's wife and child. In a bedroom closet of the house authorities found one pound of marihuana in various containers and some large stems of marihuana plants. Damron was arrested away from his home and by the time he was taken to his residence the search had been completed. There was no showing that Damron had any contraband in his possession at the time of his arrest or made any incriminating statements. Evidence did show that two days prior to the search, Damron's brother-in-law who had been previously convicted of possession of marihuana had been present in the house. In finding the evidence insufficient to support Damron's conviction for possession of marihuana, this Court noted the following:
Turning to cases involving contraband found in automobiles, we find the case of Heltcel v. State, 583 S.W.2d 791 (Tex.Cr. App.1979) to be instructive. In Heltcel, a police officer stopped a car for speeding. Heltcel was driving the car. A woman was riding in the front passenger seat and a male passenger was in the back seat "feigning sleep." After determining that
Even more recently in the case of Humason v. State, 728 S.W.2d 363 (Tex.Cr.App. 1987), we found the evidence insufficient to sustain a conviction for possession of cocaine where Humason, the sole occupant of a pickup truck, was arrested after an officer determined that he was driving with a suspended driver's license and a search of an unzipped cloth gym bag lying on the seat next to Humason revealed a clear vial containing cocaine. After applying the appropriate evidentiary tests, the Court wrote:
In the instant case, we have nothing more than the fact that a quantity of methamphetamine was found in the purse belonging to appellant's wife and in a black bag found on the front seat of appellant's car at least one and a half hours after appellant and his wife parked their car. During this time the car was unlocked and the driver's window was rolled down. There is no evidence whatsoever to connect appellant with the methamphetamine contained in his wife's purse; nor is there any evidence to show that appellant "acted with intent to promote or assist the commission of the offense by June Martha Martin by encouraging, directing, aiding or attempting to aid" her in possessing the methamphetamine. As far as the methamphetamine found in the bag in the car, there is nothing in the record affirmatively linking appellant or his wife to the black bag or the methamphetamine contained therein. Just as a rational trier of fact could have found appellant guilty of the offense so also could a rational trier of fact have found that appellant had no idea that the methamphetamine was in his wife's purse. Moreover, there was no evidence that the black bag was in the car when the appellant arrived. It is also possible that a rational trier of fact could have found that even if appellant was aware of the bag's presence in the car, he did not know what was in the black bag.
While the facts may be highly suspicious, we are compelled to hold that the State did not sustain its burden of proof that appellant was a party to the offense of possession of methamphetamine. McGoldrick v. State, supra; Travis v. State, 638 S.W.2d 502 (Tex.Cr.App.1982); Rhyne v. State, 620 S.W.2d 599 (Tex.Cr.App.1981).
The judgment of the Court of Appeals which found the evidence was sufficient to sustain appellant Lloyd Dale Martin's conviction is reversed. Since the proper remedy is to reverse the case and order the entry of an acquittal, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed. 2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), there is no need to review the ground of error urged in the State's Petition for Discretionary Review which we previously granted, specifically, the lack of a jury waiver at the punishment stage of the trial.
II. June Martha Martin
After noting that a jury found appellants June Martha Martin and Lloyd Dale Martin guilty of the offense of possession of methamphetamine, the Court of Appeals reversed their convictions after finding that no waiver of a jury trial had been filed by appellants and thus the trial court had erred in assessing their punishment. It was the position of the Court of Appeals that Article 1.13 V.A.C.C.P., mandates a jury waiver when a defendant elects not to have a jury assess punishment.
The record reflects that on May 25, 1982, all three defendants filed a joint motion asking that in the event they were found guilty, that the jury assess punishment. However, on January 17, 1983, immediately prior to the trial of appellants Lloyd Dale Martin and June Martha Martin, a hearing was had in chambers. The transcript of the hearing reflects that the appellants agreed to have the trial court assess punishment in exchange for the State's agreement not to proceed on the indicted charge of aggravated possession of a controlled substance, methamphetamine, Article 4476-15, Sec. 4.04(c), V.A.C.S., but rather the lesser offense of possession of a controlled substance, methamphetamine. Article 4476-15, Sec. 4.04(b), V.A.C.S. The trial proceeded according to this agreement and no objection was voiced by the appellants when the trial court proceeded to hear the punishment evidence and assess punishment.
The Code of Criminal Procedure provides, in accordance with the federal and state constitutions, that a defendant has the right of trial by jury. Article 1.12, V.A.C.C.P. The provisions which speak directly to waiver of a jury are as follows:
As can be seen from reading these articles, they all pertain to the guilt-innocence phase of the trial whereby an accused is convicted. No mention is made of the punishment phase of the trial and our research reveals that these provisions have never been interpreted to apply to the punishment phase of a trial. In Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977), this Court reaffirmed the longstanding proposition that the constitutional right of trial by jury does not encompass the right to have the jury assess punishment. The Court went on to find that since our trial procedure in this state is bifurcated, the statute applicable to the assessment of punishment by a jury is Article 37.07, Sec. 2(b), V.A.C.C.P. See also Ex parte Moser, 602 S.W.2d 530 (Tex. Cr.App.1980); Tinney v. State, 578 S.W.2d 137 (Tex.Cr.App.1979). At the time of the trial in the instant case, this statute provided as follows:
In the instant case, although appellant June Martha Martin initially requested that the jury assess punishment in her case, she later changed her election pursuant to the agreement in chambers on January 17, 1983. This agreement was made prior to the reading of the indictment to the jury and the entry of appellant's plea in open court. Thus at the time of appellant June Martha Martin's plea, there was no election to have the jury assess punishment. We are compelled by the record in this cause to find that appellant did timely change her election and waive the right to have the jury assess punishment. Furthermore we note that she did not object to the dismissal of the jury, the presentation of evidence to the trial court or the assessment of punishment by the trial court. Hackey v. State, 500 S.W.2d 520 (1973); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Singleton v. State, 479 S.W.2d 672 (Tex.Cr.App. 1972).
We find that the Court of Appeals erred in holding that Article 1.13 V.A.C.C.P., had been violated in appellant June Martha Martin's case. We sustain the State's ground for review.
The judgment of the Court of Appeals in June Martha Martin's case is reversed and the case is remanded for consideration of appellant's remaining points of error.
WHITE, J., concurs in the result.
DUNCAN, Judge, concurring.
I again feel compelled to express my opposition to the Court's reviewing a court of appeals' judgment regarding the sufficiency of evidence. In Beardsley v. State, 738 S.W.2d 681 (Tex.Cr.App.1988) (Duncan, J., Concurring and Dissenting Opinion), I stated that "[w]e should only review those Court of Appeals' decisions that erroneously impact the criminal law of this state." Id., at 686. The court of appeals' subjective determination that there was sufficient evidence to convict Lloyd Dale Martin of aggravated possession of methamphetamine, even if it is erroneous as the majority has concluded, does not "erroneously impact the criminal law of this state." Id. Therefore, we should never have granted the appellants' petition for discretionary review.
On the other hand, since review was granted, I concur with the majority's conclusion "that the state did not sustain its burden of proof that appellant was a party to the offense of possession of methamphetamine."