Gilley v. Collins ( 1992 )

  •                    UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                                 No. 91-1301
                               RICHARD RAY GILLEY,
                        JAMES COLLINS, Director, Texas
                       Department of Criminal Justice,
                            Institutional Division,
               Appeal from the United States District Court
                    for the Northern District of Texas
                                 August 4, 1992
    Before GOLDBERG, DUHÉ, and BARKSDALE, Circuit Judges.
    BARKSDALE, Circuit Judge:
         Richard Gilley having been granted habeas relief because there
    was insufficient evidence to support his state conviction for
    possession of marijuana, the sole issue before us "is whether,
    after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt", as held
    in Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979) (emphasis in
    original).    We AFFIRM.
         Near    Huckabay,   Texas,   on   August   26,    1986,   while   Texas
    Department of Public Safety Pilot Billy Peace, Texas Ranger John
    Dendy, and Sheriff David Coffee conducted a search by helicopter
    for stolen vehicles, Peace noticed a marijuana patch, pointed it
    out, and circled the area.   A man later identified as Jessey Gilley
    was seen running out of the patch and into the bushes toward two
    trailer houses.
         The helicopter followed a pickup truck that left one of the
    trailers and landed near it.     It was occupied by Jessey Gilley's
    wife and children.   Peace observed smoke coming from the marijuana
    patch; and, when he and Dendy took the helicopter back up, they
    observed Jessey Gilley standing by the fire.   He was arrested; 461
    marijuana plants, seeds, fertilizer, tools, and farming, drip
    irrigation and spraying equipment were seized.    Appellant Richard
    Gilley, Jessey's brother, was out of state at the time of Jessey's
    arrest, but turned himself in.
         That October, Richard Gilley was charged with possession of
    more than five but less than 50 pounds of marijuana.   And that next
    May, after he waived his right to a jury trial, the trial court
    found him guilty and sentenced him, inter alia, to fifteen years'
    imprisonment.   A Texas court of appeals affirmed the conviction in
    an unpublished opinion.1   Richard Gilley petitioned unsuccessfully
         The same court reviewed Richard's and Jessey's convictions.
    Jessey was convicted in a trial held separately and before
    Richard's, and the Texas appellate court issued two very similar
    opinions. For Richard's appeal, the initial opinion stated that
    "[t]he jury convicted Richard Ray Gilley". As noted, his trial was
    not before a jury. The opinion also quoted the testimony of a
    witness who testified at Jessey's, but not Richard's, trial.
         Although these errors were corrected in a substituted opinion,
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    for discretionary review in the Texas Court of Criminal Appeals.
         A 28 U.S.C. § 2254 federal habeas application was filed in
    1989, raising   one   of    the   issues    presented   on   direct   appeal:
    insufficient evidence.      Accordingly, the State agreed that he had
    exhausted state remedies.         The magistrate-judge recommended that
    the application be dismissed for failure to exhaust state remedies,
    but in the alternative, that it be granted on the grounds of
    insufficient evidence.        Both parties filed objections to that
    report.   The district court, after a de novo review of the
    magistrate-judge's findings and recommendation and the parties'
    objections, adopted the report and dismissed the application for
    failure to exhaust.        Both parties moved to amend the judgment,
    agreeing that state remedies had been exhausted.             Pursuant to an
    amended opinion, the judgment was amended in February 1991 to state
    that state remedies had been exhausted, and habeas relief was
    granted based on insufficient evidence.2
    they reflect the possible confusion over what evidence was
    considered in Richard Gilley's trial, as discussed in note 4,
    infra. As the federal district court stated, "[t]he trial court
    may have found additional facts connecting [Richard Gilley] to the
    marijuana in this or [an]other trial, if so, such findings have not
    been shared with this court." As discussed in note 4, while there
    may have been additional evidence against Richard in Jessey's trial
    or elsewhere, such evidence cannot be considered on appeal.
    Obviously, we may consider only evidence from Richard Gilley's
    trial, as contained in the record on appeal. See, e.g., Fed. R.
    App. P. 10 (the record on appeal); Jackson, 443 U.S. at 324; Guzman
    v. Lensing, 
    934 F.2d 80
    , 82 (5th Cir. 1991).
         Throughout the proceedings in state and federal court, Richard
    Gilley remained free on bail.
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         "Our   standard   of    review     in   a   habeas   action    alleging
    insufficient evidence is set out in Jackson ...."3                 Guzman v.
    934 F.2d 80
    , 82 (5th Cir. 1991); see Wright v. West, 60
    USLW 4639, 4641 (1992).           The sole issue before us is whether,
    pursuant to Jackson, the evidence was sufficient to support Richard
    Gilley's conviction.
         As noted, "`the relevant question is whether, after viewing
    the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt.'"            Guzman, 934 F.2d at 82
    (quoting Jackson, 443 U.S. at 319) (emphasis in Jackson).                 As
    discussed in note 1, supra, our consideration of the sufficiency of
    the evidence for Richard Gilley's conviction is, of course, limited
    to a review of the evidence presented at his trial and contained in
    the record on appeal.4      Id.
         The Jackson standard applies to both bench and jury trials;
    Jackson, like this case, involved review of a bench trial. 443
    U.S. at 309, 311 & n.3, 317 n.8 (it "is of no constitutional
    significance" whether the trier of fact is a judge or jury).
         At oral argument, the State asserted for the first time that
    we should consider evidence supposedly discussed at a pretrial
    hearing; and it described physical evidence supposedly found in
    Richard Gilley's trailer that would link him to the marijuana.
    However, the admission of that evidence at his trial does not
    appear in the record on appeal; and the alleged evidence is not
    mentioned in the briefs, the district court opinion, or the
    magistrate-judge's report. At oral argument, the State cited both
    a suppression hearing at which the trial court ruled against
    Richard Gilley, and the following colloquy from his trial in
    support of its claim that the alleged exhibits are a part of the
    record before us on appeal:
                                         - 4 -
              MR. CARNEY:    Your Honor, could we go ahead and
              open the ... pretrial exhibits so that I might have
              them already open and available and to use for
              THE COURT:     That's fine. For the record, there
              has already been a trial before a jury in this
              court with regard to ... The State of Texas vs.
              Jessey Ray Gilley, and I understand both the State
              and Defendant will be using exhibits from that ...
              proceeding, either the pretrial or trial ....
         No authority need be cited for the rule that we generally
    decline to consider issues raised for the first time at oral
    argument. But, the State's assertion is not a new issue; the only
    issue is the sufficiency vel non of the evidence. Simply put, what
    is in the record is in the record.       Obviously, the appellate
    process would have been greatly aided by the State making this
    assertion in its opening brief, so that Gilley could have responded
    in his. (The process was further impeded by the State not filing
    a reply brief, even though Gilley's brief repeatedly challenged the
    State's reading of the record.)
         Turning to the merits of this most untimely assertion, the
    alleged exhibits referenced at oral argument for the first time are
    not part of the record on appeal in this case. As discussed in
    note 1, supra, this seeming confusion about what was in evidence at
    Richard Gilley's trial was the basis for the district court's
    stating the following:
                   It is hoped the facts upon which this case is
              ultimately decided at the appellate level are the
              facts presented by the parties to the district
                   [The State] urges, and the state courts have
              held, that [Richard Gilley] exercised care,
              custody, control, or management over the marijuana
              by his ownership of, and living on the land (each
              of which was joint with Jessey Gilley), his
              frequent comings and goings to the 118 acre tract,
              and the marijuana tract not being visible from
              either mobile home.
                   The trial court may have found additional
              facts connecting [Richard Gilley] to the marijuana
              in this or [an]other trial, if so, such findings
              have not been shared with this court.
                   The [Texas] Court of Appeals ... in its second
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           The   State     maintains       that   the   magistrate-judge        erred      by
    engaging in a Texas state law reasonable hypothesis analysis,
    e.g., Humason v. State, 
    728 S.W.2d 363
    , 366 (Tex. Crim. App. 1987),
    and contends correctly that only the Jackson standard should have
    been applied.         But, in fact, it appears that Jackson was the
    standard applied by both the magistrate-judge and district judge.
    In any event, as stated, "[o]nly Jackson need be satisfied, even if
    state law      would    impose     a   more   demanding     standard      of   proof."
    Schrader v. Whitley, 
    904 F.2d 282
    , 284 (5th Cir.), cert. denied,
    ___ U.S. ___, 
    111 S. Ct. 265
     (1990); see Jackson, 443 U.S. at 326.
    "Under Jackson, we may find the evidence sufficient to support a
    conviction     even     though   the     facts      also   support    one      or    more
    reasonable hypotheses consistent with the defendant's claim of
    innocence."     Gibson v. Collins, 
    947 F.2d 780
    , 783 (5th Cir. 1991).
    Therefore, the question before us is whether any rational trier of
    fact   could    have    found    the     essential     elements      of   the       crime
                 unpublished opinion at page 4 pithily opines the
                 "mother hubbard" type phrase "... as well as the
                 other facts and circumstances...." which suggest
                 more factual findings but again this court is
                 bereft of said other facts and circumstances.
                      [The   State]   ...   offers   no   additional
                 affirmative   links[,]    simply   expounding   the
                 platitude that the marijuana was not far from where
                 he lives; however, a minimum of two hundred yards
                 through dense live oaks is twice the length of a
                 football field which annually in the fall is found
                 to be a long distance in many Texas towns on Friday
    (Emphasis added.)
                                             - 6 -
    (possession of more than five but less than 50 pounds of marijuana)
    beyond a reasonable doubt.
         Under    Texas   law,     "[i]n   order     to     establish   the   unlawful
    possession of a controlled substance the State must prove two
    elements:     (1) that the accused exercised care, control and [or]
    management over the contraband, and (2) that the accused knew that
    the matter possessed was contraband."             Guiton v. State, 
    742 S.W.2d 5
    , 8 (Tex. Crim. App. 1987) (citations omitted).                    "`Possession'
    means actual care, custody, control or management."                   Tex. Health
    & Safety Code Ann. § 481.002(38) (West 1992) (Texas Controlled
    Substances Act).      "[P]ossession must be a voluntary act."               Garcia
    v. State, 
    790 S.W.2d 22
    , 24 (Tex. App.--San Antonio 1990, rev.
    granted).     Tex. Penal Code Ann. § 6.01(b) (West 1974) provides:
    "Possession is a voluntary act if the possessor knowingly obtains
    or receives the thing possessed or is aware of his control of the
    thing   for   a   sufficient    time    to     permit    him   to   terminate   his
         It is not necessary to prove that the accused had exclusive
    possession of the contraband; however, "[w]hen [as here] the
    accused is not in exclusive possession of the place where the
    substance is found, it cannot be concluded that the accused had
    knowledge of and control over the contraband unless there are
    additional independent facts and circumstances which affirmatively
         This definition applies to prosecution under the Texas
    Controlled Substances Act. See Tex. Penal Code Ann. § 1.03(B)
    (West 1974).
                                           - 7 -
    link the accused to the contraband."              Guiton, 742 S.W.2d at 8.
    Needless to say, the State must present evidence of such additional
    facts    and    circumstances.           Id.    Circumstances    relevant    to
    establishing this affirmative link to the contraband include:               (1)
    defendant's presence when the search warrant was executed; (2)
    contraband in plain view; (3) defendant's proximity to and the
    accessibility of the narcotic; (4) defendant under the influence of
    narcotics      when    arrested;   (5)    defendant's   possession   of   other
    contraband when arrested; (6) defendant's incriminating statements
    when arrested; (7) defendant's attempted flight; (8) defendant's
    furtive gestures; (9) presence of odor of the contraband; (10)
    presence of other contraband or drug paraphernalia, not included in
    the charge; (11) defendant's ownership or right to possession of
    the place where the controlled substance was found; and (12) place
    where drugs found was enclosed.            Chavez v. State, 
    769 S.W.2d 284
    288-89   (Tex.        App.--Houston   [1st     Dist.]   1989,   review    ref'd)
    (citations omitted).
         Factual "findings made by the state court are entitled to a
    presumption of correctness in federal habeas proceedings." King v.
    945 F.2d 867
    , 868 (5th Cir. 1991); Smith v. Collins, No.
    91-2668, slip op. 5451, 5453 (5th Cir. June 30, 1992); 28 U.S.C. §
    2254(d).       We are not, however, "necessarily bound by ... [those]
    findings."      Sumner v. Mata, 
    455 U.S. 591
    , 597-98 (1982).
                Section 2254(d) permits a federal court to conclude
                ... that a state finding was `not fairly supported
                by the record.' But the statute does require the
                federal courts to face up to any disagreement as to
                                          - 8 -
              the facts and to defer to the state court unless
              one of the factors listed in § 2254(d) is found.
    Id. at 597-98 (quoting 28 U.S.C. § 2254(d)(8)).     Applying the §
    2254 presumption of correctness to the state court's findings of
    fact does not conflict with the review mandated by Jackson.
              [A]s a general matter, Jackson follows the basic
              legal standard that in order to preserve the state
              factfinder's role a federal court must review the
              evidence   in   light   most  favorable   to   the
              prosecution. Section 2254(d), on the other hand,
              provides guidance as to the extent a federal court
              should probe a state court's factfinding when
              ruling on habeas petitions.
    Chandler v. Richards, 
    935 F.2d 915
    , 917 (7th Cir. 1991).
         The State contends that the district court erred in holding
    that "a rational trier of fact could not have found beyond a
    reasonable doubt that ... [Richard] Gilley knew of the marijuana's
    existence, or exercised control over it."   It maintains that the
    following factors establish the requisite affirmative link between
    Richard Gilley and the marijuana: (1) the proximity of his trailer
    to the marijuana patch; (2) "the size and sophistication of the
    Gilley marijuana farm"; and (3) his ownership of, and commutes to
    and from, the property where the marijuana patch was located.
    Consistent with the appropriate standard of review under Jackson
    and § 2254, we review the district court's findings of fact under
    the Fed. R. Civ. P. 52(a) clearly erroneous standard.   See, e.g.,
    Smith, slip op. at 5453; Guzman, 934 F.2d at 82.
         Peace testified that a water well was located about 300 to 400
    yards from the patch and that the "first trailer house [was] not
                                  - 9 -
    too awful far from the [well]."   Sheriff Coffee testified that the
    closest trailer house was 75 to 100 yards from the patch, and that
    the pickup truck in which Jessey Gilley's family fled came from a
    second trailer house "a little further down [a dirt] road." Deputy
    McWhorter, who prepared the police report, testified that a gate
    was located fifty yards from the first trailer, that a metal shed
    (barn) was "approximately a hundred yards ... maybe further" beyond
    the gate, and that the patch was about 25 or 40 yards beyond the
         Based upon, inter alia, a review of Peace's testimony and
    photocopies of aerial photograph exhibits,6 the district judge
    agreed with the finding by the magistrate-judge, and found, as
    quoted in note 4, supra, that the marijuana was "a minimum of two
    hundred yards through dense live oaks [from where Richard Gilley
    lived -- a distance which] is twice the length of a football field
    which annually in the fall is found to be a long distance in many
    Texas towns on Friday night."
         This finding of fact by the district judge was not clearly
    erroneous.   And, although the distance between the marijuana patch
    and the trailer is disputed, there is no dispute regarding the
    visibility of the patch -- not one person testified that it was
    visible from the trailers.       Jerry Gordon, who lived near the
    property, testified that the area was "very thickly wooded, many
    draws, branches, and creeks running through it, it's a very rough
         On appeal, the State has substituted the actual photographs
    introduced at trial.    Needless to say, they should have been
    provided earlier to the district court instead.
                                    - 10 -
    pasture."   According to Peace, there was "no way" to see the patch
    from either of the trailers and it was not immediately visible
    "until you're looking down at it."     Ranger Dendy testified that,
    using the dirt road on the property, one could enter the property,
    pass both trailers, pass the well house, circle around and exit
    without being anywhere near the patch.       And, contrary to the
    State's reading of the record, that road did not run to the
    marijuana patch. Deputy Jackson testified that "[a]round the patch
    there was nothing but brush, you couldn't see very far outside the
    patch itself." Regardless of the distance between the trailers and
    the patch, the State failed to prove that it was visible from
    either of the trailers.
         The State asserts next that "the substantial expenditure of
    money and time, made in connection with the marijuana patch,
    situated close to the mobile home in which Richard Gilley and his
    family lived show that he not only knew about the marijuana, he
    planned to make a handsome profit from it."      These assertions,
    however, are again wholly unsupported by the record.   There was no
    evidence of the costs incurred in cultivating the marijuana, no
    evidence that Richard Gilley contributed to whatever costs were
    incurred, and no evidence that he expected to make a profit.
         To show this sizeable, sophisticated marijuana operation and
    link Richard Gilley to it, the State points to the drip irrigation
    system; to pipe, supposedly used for it, that was stacked against
    both trailer homes; and to the barn, which contained tools and
                                  - 11 -
    supplies.    There was no evidence, however, linking Richard Gilley
    to the barn or the irrigation system.7            For example, along with the
    marijuana plants seized from the property, the State seized tools,
    valves, and farming, drip irrigation, and spraying equipment.
    Richard Gilley's fingerprints were not found on any of these items.
    As another example, and as noted, the State contends erroneously
    that the above referenced dirt road ran from the trailers to the
         Richard Gilley was one of the owners of the property where the
    marijuana was found; however, as noted, this is not enough to prove
    the requisite "exercise of care, custody, control or management"
    over it.    See, e.g., United States v. Culpepper, 
    834 F.2d 879
    , 882
    (10th Cir. 1987) ("[T]he state of legal title to the fields ...
    [is] not germane to the question whether [one has] the power and
    ability to exercise dominion and control over the marijuana.").
    The State also introduced electric and telephone records and
    testimony from a neighbor that he observed Richard Gilley coming
    and going "on a daily basis" to prove that he lived on the
    property.        But, establishing an affirmative link between Richard
    Gilley     and     the   property   does    not    establish   the   requisite
    affirmative link between him and the marijuana. As noted, the area
         Richard Gilley arranged to have the water well drilled; and it
    was used, among other uses, to irrigate the marijuana. The well
    contractor testified that Gilley "requested a unit that was big
    enough to serve two households." There is no evidence that the
    well was anything more than "a four inch domestic water well" with
    a standard eighty gallon pressure tank. And, there is no evidence
    linking the irrigation use to Richard Gilley.
                                         - 12 -
    was extremely dense with woods and underbrush.   As also noted, the
    State's witness, Ranger Dendy, testified that one could enter the
    property, pass both trailers, pass the well house, circle around
    and exit without being near the marijuana patch.
          An affirmative link between Richard Gilley and the marijuana
    is a requisite element for the charge of possession when, as here,
    the accused is not in exclusive possession of the place where the
    contraband is found.   On this record, this is the missing link.
    And, without this link, no rational trier of fact could have found
    possession beyond a reasonable doubt.     In sum, and viewing the
    evidence in the light most favorable to the prosecution, the State
    has shown that Richard Gilley co-owned property that was extremely
    brushy and densely wooded, that he commuted to and from it, that he
    contracted to have a well built, and that a marijuana patch existed
    on this property which could not be seen from the trailers or the
    road leading to and from them.    But, inter alia, the record does
    not contain sufficient evidence for any rational trier of fact to
    find, beyond a reasonable doubt, that Gilley exercised care,
    custody, control or management over that marijuana. Therefore, the
    judgment granting habeas relief is
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