                                                                            ACCEPTED
                                                                        12-15-00073-CR
                                                           TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                  8/19/2015 11:42:44 PM
                                                                          CATHY LUSK
                                                                                 CLERK

             NUMBER 12-15-00073-CR

  IN THE TWELFTH DISTRICT COURT OF APPEALS     FILED IN
                                        12th COURT OF APPEALS
                TYLER, TEXAS                 TYLER, TEXAS
                                               8/19/2015 11:42:44 PM
                                                    CATHY S. LUSK
                                                        Clerk
            YAGO SANTAIN FOUNTAIN,
                   Appellant
                       v.
              THE STATE OF TEXAS,
                    Appellee

From the 114th District Court of Smith County, Texas
         Trial Cause Number 114-0896-14

                 STATE’S BRIEF

          ORAL ARGUMENT REQUESTED

                D. MATT BINGHAM
             Criminal District Attorney
                Smith County, Texas

                  AARON REDIKER
             Assistant District Attorney
        State Bar of Texas Number 24046692
        Smith County Courthouse, 4th Floor
                 Tyler, Texas 75702
               Phone: (903) 590-1720
                Fax: (903) 590-1719
        Email: arediker@smith-county.com
                                                     TABLE OF CONTENTS

Index of Authorities ............................................................................................................ 2


Statement of Facts............................................................................................................... 3


Summary of Argument....................................................................................................... 4


I.ISSUE ONE: The combined circumstantial evidence linking appellant with the
contraband, coupled with the reasonable inferences therefrom, was sufficient to
establish that appellant knowingly possessed the marihuana found under the hood
of the vehicle in which he was a passenger. ................................................................... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6


Certificate of Compliance ................................................................................................ 18


Certificate of Service ........................................................................................................ 18




                                                                   1
                                              INDEX OF AUTHORITIES


Texas Cases
Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011) ............................................ 16
Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995) .................................................... 7
Castellano v. State, 810 S.W.2d 800 (Tex. App.—Austin 1991, no pet.) ......................... 14
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 6
Dixon v. State, 918 S.W.2d 678 (Tex. App.—Beaumont 1996, no pet.).......................... 10
Duff v. State, 546 S.W.2d 283 (Tex. Crim. App. 1977)...................................................... 16
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ........................................... 6, 8, 16
Fields v. State, 932 S.W.2d 97 (Tex. App.—Tyler 1996, pet. ref’d) ........................... 10, 13
Gant v. State, 116 S.W.3d 124 (Tex. App.—Tyler 2003, pet. ref’d) ................................ 15
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ................................................. 11
Hernandez v. State, 538 S.W.2d 127 (Tex. Crim. App. 1976) ....................................... 8, 16
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ....................................................... 6
Hurtado v. State, 881 S.W.2d 738 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)8, 14,
   15
James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) ... 8, 14
Lassaint v. State, 79 S.W.3d 736 (Tex. App.—Corpus Christi 2002, no pet.) ................ 12
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .................................................... 5
Medina v. State, 242 S.W.3d 573 (Tex. App.—Waco 2007, no pet.)................................ 13
Muckleroy v. State, 206 S.W.3d 746 (Tex. App.—Texarkana 2006, pet. ref’d) .............. 12
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ............................................. 6
Siroky v. State, 653 S.W.2d 476 (Tex. App.–Tyler 1983, pet. ref’d) ................................. 7
Whitworth v. State, 808 S.W.2d 566 (Tex. App.—Austin 1991, pet. ref’d) .................... 14
Willis v. State, 192 S.W.3d 585 (Tex. App.—Tyler 2006, pet. ref’d) ........................... 9, 12


Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................. 5




                                                           2
                             NUMBER 12-15-00073-CR

                 IN THE TWELFTH DISTRICT COURT OF APPEALS
                               TYLER, TEXAS

                            YAGO SANTAIN FOUNTAIN,
                                   Appellant
                                       v.
                              THE STATE OF TEXAS,
                                    Appellee

               From the 114th District Court of Smith County, Texas
                        Trial Cause Number 114-0896-14

                                   STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s sole alleged issue and affirm the judgment of the trial court in the

above-captioned cause.


                                 STATEMENT OF FACTS

      Appellant has stated the essential nature of the proceedings and the

evidence presented at trial (Appellant's Br. 2-4). In the interest of judicial economy,



                                          3
any other facts not mentioned therein that may be relevant to the disposition of

appellant's issue will be discussed in the State's argument in response.


                              SUMMARY OF ARGUMENT

   The State showed substantially more factors linking appellant to the

contraband than mere presence, and the logical force of all the evidence, direct

and circumstantial, was legally sufficient to show that appellant knowingly

possessed marihuana. These factors included the following: (1) appellant’s

presence at the time of the search of the vehicle in which the marihuana was found,

(2) his conduct, including extreme nervousness, showed a consciousness of guilt,

(3) appellant proximity and access to the marihuana under the hood, (4) the odor

of marihuana was present inside the vehicle, (5) the stories of appellant and the

driver of the vehicle as to the purpose of their trip to Dallas from Louisiana were

inconsistent and implausible, (6) items to mask the scent of marihuana from

detection by law enforcement were found in the vehicle, (7) the amount of

contraband was significant, (8) the marihuana was located in an enclosed space,




                                         4
(9) appellant was traveling on a major drug corridor, and (10) appellant did not act

surprised or shocked when the marihuana was discovered.


I. ISSUE ONE: The combined circumstantial evidence linking appellant with the
contraband, coupled with the reasonable inferences therefrom, was sufficient to
establish that appellant knowingly possessed the marihuana found under the hood
of the vehicle in which he was a passenger.


                                 STANDARD OF REVIEW

   Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443

U.S. 307, 319 (1979), the Supreme Court stated that, "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." When conducting a legal sufficiency review, a

reviewing court must ask whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt, and not whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.

Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The same standard applies

equally to circumstantial and direct evidence. Id. When examining the evidence


                                           5
for legal sufficiency, a reviewing court’s role is not to become a “thirteenth juror”,

and it may not “re-evaluate the weight and credibility of the record evidence” and

thereby substitute its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999). Thus, “[t]he reviewing court must give deference to

the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. at 318-19) (internal quotation marks omitted).


                                      ARGUMENT

   In a single issue, appellant claims the State’s evidence showing that she

possessed the marihuana at issue was legally insufficient (Appellant’s Br. 4-23).

“[I]n a possession of a controlled substance prosecution, ‘the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2)

the accused knew the matter possessed was contraband.’” Evans v. State, 202 S.W.3d

158, 161 (Tex. Crim. App. 2006) (quoting Poindexter v. State, 153 S.W.3d 402, 405 (Tex.

Crim. App. 2005)). “Possession need not be exclusive, however, and a showing of

                                          6
joint possession with another is sufficient.” Siroky v. State, 653 S.W.2d 476, 479 (Tex.

App.–Tyler 1983, pet. ref’d). Direct or circumstantial evidence may be used to

prove knowing possession of a controlled substance. Brown v. State, 911 S.W.2d 744,

747 (Tex. Crim. App. 1995). “Regardless of whether the evidence is direct or

circumstantial, it must establish that the defendant's connection with the drug

was more than fortuitous.” Evans, 202 S.W.3d at 161. As the Court of Criminal

Appeals explained in Evans:

      Mere presence at the location where drugs are found is thus insufficient, by
      itself, to establish actual care, custody, or control of those drugs. However,
      presence or proximity, when combined with other evidence, either direct or
      circumstantial (e.g.," links"), may well be sufficient to establish that element
      beyond a reasonable doubt. (footnote omitted).

Id. at 162. The Court also provided a nonexclusive list of possible links that Texas

courts had recognized as sufficient, “either singly or in combination, to establish

a person’s possession of contraband”:

      (1) the defendant's presence when a search is conducted; (2) whether the
      contraband was in plain view; (3) the defendant's proximity to and the
      accessibility of the narcotic; (4) whether the defendant was under the
      influence of narcotics when arrested; (5) whether the defendant possessed
      other contraband or narcotics when arrested; (6) whether the defendant


                                           7
      made incriminating statements when arrested; (7) whether the defendant
      attempted to flee; (8) whether the defendant made furtive gestures; (9)
      whether there was an odor of contraband; (10) whether other contraband or
      drug paraphernalia were present; (11) whether the defendant owned or had
      the right to possess the place where the drugs were found; (12) whether the
      place where the drugs were found was enclosed; (13) whether the defendant
      was found with a large amount of cash; and (14) whether the conduct of the
      defendant indicated a consciousness of guilt.

Id. at 162 n.12. “However, the absence of the above facts and circumstances is not

evidence of appellant's innocence to be weighed against evidence tending to

connect appellant to the marihuana.” Hernandez v. State, 538 S.W.2d 127, 131 (Tex.

Crim. App. 1976). See also James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston

[1st Dist.] 2008, pet. ref’d) (“The absence of various affirmative links does not

constitute evidence of innocence to be weighed against the affirmative links

present”); Hurtado v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994,

pet. ref’d) (“Because our review is no longer based on whether the State disproves

reasonable alternatives to a defendant's guilt, we need not consider affirmative

link factors that are absent from the evidence.”). “These are simply some factors

which may circumstantially establish the legal sufficiency of the evidence to prove



                                         8
a knowing ‘possession.’ They are not a litmus test.” Evans, 202 S.W.3d at 162 n.12.

“It is the logical force of the circumstantial evidence, not the number of links, that

supports a jury's verdict.” Id. at 166.

   Here, the evidence linking appellant to the marihuana consisted of

substantially more than appellant’s mere presence as a passenger in the vehicle

where the drugs were found (Appellant’s Br. 4). The arresting officer, Trooper

Martin, testified that Interstate 20 is a known drug corridor and that Dallas is a

“drug hub, kind of a station where, you know, believe it or not, cartels and

organized gangs will get that dope to Dallas, and then they’ll distribute it, you know,

up north or east or wherever they can to supply other organized crime affiliates.”

(XI Rep.’s R. at 34). See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.—Tyler 2006, pet.

ref’d) (finding link where defendant stopped on Interstate 20, “a heavily traveled

narcotics corridor from Dallas to the east coast”). In the early morning hours of

17 September 2013, Trooper Martin had initiated a traffic stop on a Chevrolet

Suburban for a defective license plate lamp (XI Rep.’s R. at 42, 44). The vehicle was

traveling eastbound on I-20, away from Dallas and toward Louisiana (Id. at 43). As


                                            9
Trooper Martin approached the vehicle, he noticed that appellant, sitting in the

passenger seat, had already unbuckled his seatbelt and was holding it in his hand

while giving the trooper a “deer in the headlight” look (Id. at 45). Trooper Martin

testified that he found this very odd and asked appellant if he planned on running

(Id. at 46). After exiting the vehicle, the driver, Lapatrick Mitchell, told Martin that

the Suburban belonged to a friend (Id. at 49). Martin stated that traveling long

distances in a third party’s vehicle is a suspicious circumstance not uncommon

among drug traffickers (Id. at 49-50). See Dixon v. State, 918 S.W.2d 678, 681 (Tex.

App.—Beaumont 1996, no pet.) (that the vehicle in which the drugs were found was

borrowed tended to link defendant to contraband).

   Mitchell also told Trooper Martin that he was traveling to Dallas, about three

hours from Louisiana and six hours roundtrip, “to get a tire fixed” and to take

appellant’s aunt back to Dallas (XI Rep.’s R. at 50-51). Appellant, however, stated

that they were travelling to Dallas to drop off Mitchell’s aunt and to buy a new tire

because it was cheaper in Texas (Id. at 57-58; State’s Ex. 1). See Willis, 192 S.W.3d at

594 (finding link where defendant and his passenger “gave conflicting stories


                                          10
about the underlying reasons for their trip.”); Fields v. State, 932 S.W.2d 97, 104 (Tex.

App.—Tyler 1996, pet. ref’d) (finding link where appellant and driver “gave

conflicting stories as to their purpose for coming to Texas and activities while in

Texas”). Trooper Martin did not think it plausible that appellant and Mitchell

would take a six-hour drive in a Suburban to “save a couple bucks on a tire.” (XI

Rep.’s R. at 145). See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)

(“Attempts to conceal incriminating evidence, inconsistent statements, and

implausible explanations to the police are probative of wrongful conduct and are

also circumstances of guilt.”). Further, appellant could not tell the trooper when

they had left Louisiana to drive to Dallas (XI Rep.’s R. at 58-59), and he had to be

prompted by Martin until settling on “sunup” (State’s Ex 1). Mitchell had stated

that they left Louisiana “about eleven.” (XI Rep.’s R. at 122). Appellant appeared

very nervous while Trooper Martin questioned him—much more nervous than a

passenger would normally be during a routine traffic stop (Id. at 53-55). Appellant

was breathing rapidly, and his hands were visibly trembling (Id. at 53, 56). See Willis,

192 S.W.3d at 594 (finding link where defendant “appeared extremely nervous


                                           11
because his hands were trembling and the artery on his neck was throbbing.”);

Lassaint v. State, 79 S.W.3d 736, 744 (Tex. App.—Corpus Christi 2002, no pet.)

(“Excessive nervous behavior and unsettled demeanor may be examples of

consciousness of guilt.”). Appellant was so nervous, in fact, that Martin asked him

whether he had any warrants out for his arrest, but appellant stated that he did

not (XI Rep.’s R. at 56-57).

   After Mitchell gave him consent to search the vehicle, Trooper Martin located

“a brand new roll of cellophane plastic wrap and two cans of, like, axle grease” in

one of the rear panels where the jack was kept (Id. at 63). He testified, “[a] lot of

times when people transport illegal narcotics or drugs, they use cellophane to

wrap it, and they use axle grease to try to mask the smell and odor not only for us

but also for the canine; if a canine is called, to try to throw the canine off.” (Id.).

See Muckleroy v. State, 206 S.W.3d 746, 749 (Tex. App.—Texarkana 2006, pet. ref’d)

(finding link where “numerous pieces of aluminum foil, commonly used to wrap

narcotics, were inside the vehicle”); Willis, 192 S.W.3d at 594 (finding link where

“[a] strong scent of air freshener emanated from the car, which Hellen stated is an


                                          12
indicator of a common practice employed by drug traffickers to cut down the smell

of the drugs”). Trooper Martin continued: “And when I got to the front driver’s

side, I started to look underneath the dash, and I got a big hint of raw marijuana

smell – odor.” (XI Rep.’s R. at 64). He stated that raw marihuana has “a more

intense odor” than burnt marihuana (Id.), and he was “100 percent sure” that he

could smell the odor from the dashboard inside the vehicle (Id. at 150). After

releasing the hood latch from inside the vehicle, Trooper Martin discovered three

large bricks of marihuana, totaling 8.59 pounds (Id. at 176), sitting right beneath

the hood on top of the engine compartment (Id. at 66-67; State’s Ex. 1-3). See Fields,

932 S.W.2d at 104 (finding link between passenger and contraband where, “the

drugs were found concealed beneath the closed hood of the Lincoln, and the hood

latch was controlled from the interior of the car”); Medina v. State, 242 S.W.3d 573,

576-77 (Tex. App.—Waco 2007, no pet.) (holding contraband found under hood of

vehicle was in close proximity to defendant, who was asleep in back seat). On the

video, appellant and Mitchell can be seen exchanging several glances as Trooper

Martin releases the hood latch and walks to the front of the vehicle to look


                                         13
underneath the hood (State’s Ex. 1). It was not unreasonable for the jury to

conclude from this behavior that both men knew exactly what Martin was about

discover under the hood. See Hurtado, 881 S.W.2d at 743 (finding link based on

“appellant's nervousness and unusual conduct in the manner of his frequent

glances toward the particular place where the contraband was found”); Castellano

v. State, 810 S.W.2d 800, 807 (Tex. App.—Austin 1991, no pet.) (“Knowledge can be

inferred from the conduct of and remarks by the accused and from circumstances

surrounding the acts engaged in by the accused.”). Immediately after finding the

marihuana, Trooper Martin told both appellant and Mitchell to get on the ground,

but they did not immediately respond to his command (XI Rep.’s R. at 79). See

Whitworth v. State, 808 S.W.2d 566, 570 (Tex. App.—Austin 1991, pet. ref’d)

(defendant’s reaction to being arrested may serve as link to contraband). Martin

then performed a felony takedown of both men, and he can be seen on the video

repeatedly telling them to get on the ground (State’s Ex. 1). Mitchell actually took

a step to the side rather than dropping down, and the trooper thought that they

might be getting ready to run or circle around him (XI Rep.’s R. at 79). See James,


                                        14
264 S.W.3d at 220 (finding link where defendant was “nervously looking around in

a manner that made the officers believe he was going to attempt to flee.”). Neither

appellant nor Mitchell appeared surprised when Trooper Martin discovered the

marihuana, and appellant nonchalantly denied ownership of the drugs while

Mitchell remained silent (XI Rep.’s R. at 92, 152, 166-67). See Castellano, 810 S.W.2d

at 807 (inference of knowledge can be made from defendant’s lack of concern or

surprise when contraband discovered); Fields, 932 S.W.2d at 104 (finding link

between contraband and passenger where he “exhibited unnatural equanimity

and lack of concern throughout the temporary detention and the subsequent

investigation”).

   Finally, Trooper Martin described the contraband as a large sum of marihuana,

quite a bit more than the typical user amount of two ounces (XI Rep.’s R. at 80, 87-

88, 144). See Gant v. State, 116 S.W.3d 124, 131-32 (Tex. App.—Tyler 2003, pet. ref’d)

(that there was a significant amount of contraband can serve as a factor showing

knowing possession and finding link where eight pounds of marihuana found in a

large bag). A pound of good quality marihuana could be sold for as much as $5,000,


                                         15
and thus, the recovered bricks were worth “quite a bit of money.” (XI Rep.’s R. at

88-89). See Hurtado, 881 S.W.2d at 743 (finding link where “the large, extremely

valuable quantity of cocaine, a near-kilo ‘brick,’ an amount not likely be misplaced

or forgotten by an owner or person entrusted with its possession”); Blackman v.

State, 350 S.W.3d 588, 595-596 (Tex. Crim. App. 2011) (“A jury could reasonably find

that Gordon would not bring two innocent-bystander witnesses hundreds of miles

to a large-scale narcotics transaction.”). Therefore, examining the evidence in the

light most favorable to the jury's verdict and considering the logical force of the

factors discussed above linking appellant to the marihuana, a rational jury could

have reasonably determined beyond a reasonable doubt that appellant knowingly

possessed the marihuana under the hood. See Evans, 202 S.W.3d at 166. Cf. Duff v.

State, 546 S.W.2d 283, 288 (Tex. Crim. App. 1977) (“[T]he conflict between the

appellants' stories is a circumstance implying guilt and when it is coupled with the

strong odor of marihuana and the presence of what appeared to be marihuana

seeds on the floor of the vehicle, the evidence is sufficient to link appellant Pendley

with the marihuana.”). There was sufficient evidence linking appellant to the


                                          16
marihuana to support the reasonable inference that he was knowingly in

possession of it, and his sole alleged issue should be overruled. See Hernandez, 538

S.W.2d at 131.

                                      PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court

overrule appellant’s alleged issue and affirm the judgment of the 114th District

Court of Smith County, Texas, in the above-captioned cause.

                                             Respectfully submitted,

                                             D. MATT BINGHAM
                                             Criminal District Attorney
                                             Smith County, Texas

                                             /s/ Aaron Rediker
                                             Aaron Rediker
                                             Assistant District Attorney
                                             SBOT #: 24046692
                                             100 North Broadway, 4th Floor
                                             Tyler, Texas 75702
                                             Office: (903) 590-1720
                                             Fax: (903) 590-1719 (fax)
                                             arediker@smith-county.com




                                        17
                           CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 2,873 words as

calculated by Microsoft Word 2013.

                                           /s/ Aaron Rediker
                                           Aaron Rediker


                             CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 19th day of August 2015, the

State’s Brief in the above-numbered cause has been electronically filed, and a

legible copy of the State's Brief has been sent by email to A. Reeve Jackson,

attorney for appellant, at JLawAppeals@gmail.com.




                                           /s/ Aaron Rediker
                                           Aaron Rediker




                                      18
