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Torre v. State

Court of Criminal Appeals of Texas

September 18, 2019

LISANDRO BELTRAN DE LA TORRE, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS COLORADO COUNTY

          OPINION

          SLAUGHTER, J.

         This case concerns a challenge to the trial court's jury instructions in a drug possession prosecution where several individuals were in close proximity to the drugs. In his petition for discretionary review, Lisandro Beltran De La Torre, Appellant, contends that the court of appeals erred by rejecting his two complaints of jury-charge error. First, he contends that the court of appeals incorrectly upheld the trial judge's decision to give a non-statutory instruction on "joint possession," informing the jury that "two or more people can possess the same controlled substance at the same time." Second, he contends that the court of appeals further erred by upholding the trial judge's denial of his request for an instruction on "mere presence," which would have informed the jury that a person's mere presence at a location where drugs are found is insufficient to demonstrate possession.

         We hold that both the joint-possession instruction and the proposed mere-presence instruction constitute improper comments on the weight of the evidence and should not be included in the jury charge. Thus, by upholding the trial court's inclusion of the joint-possession instruction the court of appeals erred, but it was correct to uphold the trial court's refusal of the mere-presence instruction. Accordingly, we reverse the court of appeals' judgment due to its error regarding the joint-possession instruction and remand this case to the court of appeals for a harm analysis.

         Background

         Two officers from the Columbus Police Department responded to a mid-morning call about people suspected of drinking alcohol inside a parked car at the Department of Public Safety driver's license office. The officers, Anthony Axel and Jose Lara, approached the car and observed three occupants inside-Appellant in the driver's seat, a female in the front passenger seat, and a second female passenger in the back seat. The officers also saw a man standing outside the vehicle on the passenger's side. That man was asked to sit down nearby, but he was not questioned and later walked away from the scene.

         Officer Lara, while standing at the driver's door, noticed a small plastic bag containing a powdery substance on the car's center console. Suspecting that the bag contained a controlled substance, Officer Lara asked Appellant and the female passengers to step out of the car. Officer Lara detained the female passengers while Officer Axel detained Appellant behind the vehicle.

         Officer Axel testified that Appellant smelled of alcohol, had bloodshot eyes, and appeared to have not slept in a day or more. Both officers stated that Appellant had dilated pupils, which they believed based on their training and experience indicated the use of narcotics. The officers removed the bag with the white powdery substance and field tested it. The test yielded a positive result for cocaine. Appellant and the two female passengers were then arrested for possession of a controlled substance.

         The white powdery substance was subsequently tested in a lab. The lab testing revealed that the bag contained .02 grams of cocaine. Appellant was charged with and tried for possession of less than a gram of cocaine.

         At Appellant's jury trial, the State put on evidence of possession by showing that Appellant: was the registered owner of the vehicle; was in the driver's seat and had direct access to the cocaine located on the car's center console; and showed signs of having ingested narcotics. The State also argued to the jury that, even if Appellant was not in sole possession of the cocaine, he could have jointly possessed it along with the other occupants of the vehicle.

         Appellant testified in his own defense. He claimed that the cocaine was not his, and he had no knowledge of it being in his car. Appellant suggested that because there were three other people present at the time police arrived, including the man who was observed standing outside the vehicle, the drugs belonged to one of them.[1]

         After the close of evidence, the jury was charged on the applicable statutory elements of possession of a controlled substance ("A person commits an offense if the person intentionally or knowingly possesses a controlled substance[.]").[2] The statutory definition of "possession" was also included ("'Possession' means actual care, custody, control, or management").[3] Immediately following the statutory definition of "possession," the jury charge included the non-statutory instruction on joint possession ("Two or more people can possess the same controlled substance at the same time."). Because the joint-possession instruction was included in the jury charge, at the charge conference, Appellant had requested an instruction on "mere presence." Appellant's oral request of a mere-presence instruction was not reduced to writing, but presumably the trial court understood this as a request to include the following language in the charge: "Mere presence at a place where narcotics are found is not enough to constitute possession." The trial court denied Appellant's request, and the mere-presence instruction was excluded.

         The jury returned a guilty verdict, and the trial court sentenced Appellant to two years in state jail, probated for three years. Appellant appealed.

         The Court of Appeals' Opinion

         On direct appeal, Appellant challenged both the inclusion of the joint-possession instruction and the denial of the mere-presence instruction. Appellant contended that the trial court's inclusion of the joint-possession instruction impermissibly added to the statutory definition of possession and drew the jury's attention to the State's theory that he had jointly possessed the cocaine along with the other occupants of the vehicle. On this basis, Appellant argued that the instruction was an improper comment on the weight of the evidence.

         Regarding the trial court's denial of his requested mere-presence instruction, Appellant argued that by including a joint-possession instruction, the trial court was then also required to include his requested instruction to clarify for the jury that a person who is merely present at a location where drugs are found is not automatically deemed to be in possession of those drugs. The court of appeals rejected both of Appellant's complaints. Beltran De La Torre v. State, 546 S.W.3d 420, 426-27 (Tex.App.-Houston [1st Dist.] 2018) (concluding that possession has an "established legal meaning[ ]" that includes the concept of joint possession, and thus instruction informing jurors of that ...


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