                                                         PD-0730-15
                                        COURT OF CRIMINAL APPEALS
                                                        AUSTIN, TEXAS
                                      Transmitted 12/28/2015 4:53:10 PM
                                        Accepted 12/29/2015 4:34:56 PM
                                                         ABEL ACOSTA
                                                                 CLERK


           No. PD-0730-15

               IN THE

  COURT OF CRIMINAL APPEALS

               OF THE

         STATE OF TEXAS


       DALLAS CARL TATE,
           Appellant

                  v.
      THE STATE OF TEXAS,
            Appellee


    Appeal from Montague County



APPELLANT'S BRIEF ON THE MERITS



            Lynn Switzer
       Texas Bar No. 24002213         December 29, 2015

            J eromie Oney
       Texas Bar No. 24042248

    Switzer I Oney Attorneys at Law
             P.O. Box 2040
       Gainesville, Texas 76241
        (940) 665-6300 (phone)
          (940)-665-6301 (fax)
                                TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................... .ii

INDEX OF AUTHORITIES ............................................................... .iii

STATEMENT OF THE CASE ............................................................. 1

STATEMENT REGARDING ORAL ARGUMENT .................................... 2

ISSUE PRESENTED ........................................................................ 2

STATEMENT OF FACTS .................................................................. 2

SUMMARY OF THE ARGUMENT ..................................................... .4

ARGUMENT AND AUTHORITIES ...................................................... 4

       1. Standard of Review ............................................................... .4

      2. Authority ............................................................................ 5

      3. Analysis .............................................................................. 6

      4. Conclusion ........................................................................... 9

PRAYER FOR RELIEF .................................................................... 10

CERTIFICATE OF COMPLIANCE ...................................................... 10

CERTIFICATE OF SERVICE ............................................................ 11




                                               ii
                               INDEX OF AUTHORITIES

State Cases

Brown v. State, 911S.W.2d744, (Tex.Crim.App.1995) ................................. 5

Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App.1981) ............................... 6

Dobbs v. State, 434 S.W.3d 166 (Tex.Crim.App.2014) .............. .. ....... .... ... ... 5

Evans v. State, 202 S.W.3d 158 (Tex.Crim.App.2006) ............................... 8, 9

Isassi v. State, 220 S.W.3d 633 (Tex.Crim.App.2010) .................................. 5

Johnson v. State, 658 S.W.2d 623 (Tex.Crim.App.1983) ................................ 6

Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App.2005) ............................ 6

Robertson v. State, 80 S.W.3d 730 (Tex.App.-Houston [1st Dist] 2002) .......... 7, 8

Sorrels v. State, 343 S.W.3d 152 (Tex.Crim.App.2011) ................................. 5

Tate v. State, 463 S.W.3d 272 (Tex.App.- Ft. Worth 2015) .............. 1, 4, 6, 7, 8, 9

Federal Cases

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979) .............. 5

Statutes

Tex. Health & Safety Code§§ 481.102(6), 115(la), 002(38) ........................... 5

Tex. Rules Evid. 404(b)(l) ............................................................... ... .7




                                               iii
                                                  No. PD-0730-15

                             IN THE COURT OF CRIMINAL APPEALS

                                        OF THE STATE OF TEXAS

DALLAS CARL TATE,                                                                  Appellant

v.

THE STATE OF TEXAS,                                                                Appellee


                             APPELLANT'S BRIEF ON THE MERITS


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

            Comes now Dallas Carl Tate, by and through his Counsel, and respectfully

presents to this Court his brief on the merits.

                                      STATEMENT OF THE CASE

            After a jury trial, Appellant was convicted of Possession of a Controlled

Substance on April 10, 2014.1                     On May 14, 2015 the Second Court of Appeals

reversed the conviction of the trial court and entered a judgment of acquittal,

holding "a rational juror could not have determined beyond a reasonable doubt

from the evidence that Tate intentionally or knowingly exercised care, custody, or

control over the syringe such as to constitute 'possession' of the methamphetamine

that was later found inside the vehicle. " 2


I   CR44.
2
    Tate v. State, 463 S. W.3d 272, 277 (Tex. App.-Ft. Worth 2015).

                                                            1
           The State filed a Petition for Discretionary Review on July 1, 2015. This

Court granted the State's Petition for Discretionary Review on October 14, 2015.

                     STATEMENT REGARDING ORAL ARGUMENT

           Oral argument was not requested or granted by the Court.

                                  ISSUE PRESENTED

           The Court of Appeals properly held there was insufficient evidence
           connecting Appellant to the contraband located in the vehicle after he
           was removed from the vehicle.

                               STATEMENT OF FACTS

           Dallas Tate was pulled over by Rick Beckham, a detective with the Bowie

Police Department, because Beckham recognized Tate as someone having

outstanding arrest warrants. 3 Beckham confirmed the reports and placed Tate in

custody. At the time of the arrest there were two other individuals in the vehicle

driven by Tate. Berta Proctor was in the front passenger seat and Yvonne Hale

was in the passenger side back seat. 4 Neither passenger was arrested.

           Tate told Beckham he owned the vehicle but could not provide Beckham

with any documents proving his ownership.             The vehicle was registered in

someone else's name. 5 At least one of the passengers also claimed to own the




3
    3 RR at 12-13.
4
    3 RR at 13-14.
5
    3 RR at 14.

                                            2
vehicle.         Beckham impounded the vehicle and subsequently conducted an

inventory of the contents of the vehicle. 6

          During the course of the vehicle inventory Beckham located a syringe

containing a brown liquid. The syringe was located in a compartment underneath

the air conditioner and heater controls and directly to the right of the passenger

seat. 7

          When Tate was asked to exit the passengers were allowed to remain inside

the vehicle. 8 Beckham believed the passengers remained in the vehicle around 5

minutes before being removed from the vehicle. 9 Beckham believed the front

passenger would have been able to reach the compartment where the syringe was

located.       Beckham could not see what the passengers were doing while they

remained in the car. Consequently, he wanted them removed from the vehicle. 10

          The passengers' purses were searched by Beckham with their consent. No

contraband was located in either purse.           Their persons were also eventually

searched by a female officer and again, no contraband was located. 11




6
  3 RR at 15.
7
  3 RR at 18.
8
  3RRat25 .
9
  3 RR at 28.
10
   3 RR at 29-30.
11
   3 RR at 14, 36-37 .

                                              3
                                SUMMARY OF THE ARGUMENT

           The court below correctly and permissibly determined that the evidence was

insufficient to support the Appellant's conviction for possession of a controlled

substance.          The "logical force" of the factors linking the Appellant with the

contraband did not prove he committed the offense.

           The links connecting the Appellant to the contraband are weak. The State

relies heavily on the link that the contraband was found within arms-reach of

where the Appellant had been sitting while driving the car; however the link is

tenuous because the contraband was discovered only after the passengers had

remained in the car for several minutes after the Appellant's removal. The only

other factors- that he was the alleged owner of the vehicle and he should have

been familiar with the drug-use history of one of his passengers- do not create a

"logical force" by which the evidence was sufficient to sustain a conviction of

guilt.

                               ARGUMENTS AND AUTHORITIES
       1. Standard of Review
       The Court of Appeals correctly laid out the standard of review. 12 In a due-

process review of the sufficiency of the evidence to support a conviction, a court

shall view all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements the crime

12
     Tate, 463 S.W.3d at 274-275.

                                             4
beyond a reasonable doubt. 13 This standard gives full play to the responsibility of

the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
                                                                                     14
draw reasonable inferences from the basic to ultimate facts.

     When performing an evidentiary sufficiency review, a court may not re-

evaluate the weight and credibility of the evidence and substitute its judgment for

that of the factfinder. 15 The court must determine whether the necessary inferences

are reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. 16

     2. Authority

     To prove the offense of possession of a controlled substance, the State must

show the Appellant knowingly or intentionally possessed a controlled substance

listed in Penalty Group 1, which includes Methamphetamine. 17                                            To prove

possession, the State must prove that the accused ( 1) exercised actual care,

custody, control, or management over the substance and (2) knew that the matter

possessed was a controlled substance. 18

     While the evidence used to prove possession may be either direct or

circumstantial, the evidence must show that the accused's connection with the

13
   Id. citing Jackson v. Vi rginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 560 (1979); Dobbs v. State, 434
S.W.3d 166, 170(Tex.Crim.App.2014).
14 Id.
15
   Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010)
16
   Sorrels v. State, 343 S.W .3d 152, 155 (Texas.Crim.App.2011)
17
   Tex. Health & Safety Code Ann. §§ 481.102(6), l 15(la).
18
   Id. § 481.002(38); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

                                                           5
substance was more than fortuitous. 19 When the accused is not in exclusive

possession of the place where contraband is found, there must be additional

independent facts and circumstances which affirmatively link the person to the

contraband in such a way that it can be concluded that the accused had knowledge

of the contraband and exercised control over it. 20 An affirmative link generates a

reasonable inference that the accused knew of the contraband's existence and

exercised control over it. 21

     3. Analysis
     The evidence does not show the Appellant "possessed" the contraband. The

Court of Appeals correctly ruled that the cumulative force of the evidence, even

when viewed in the light most favorable to the verdict, was not sufficient to

support the verdict. The Court indicated the only factors linking the Appellant to

the contraband were that he "was the driver and purported owner of the vehicle in

which the syringe was found in a location that would have been conveniently

accessible to both Tate and [the passenger]" 22 The State contends two additional

factors support the Appellant's conviction: (1) the Appellant previously served

four years for possession of a controlled substance; and (2) he invited people into




19
   Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App.2005).
20
   Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981).
21
   Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App.1983).
22
   Tate, 463 S.W.3d at 276.

                                                       6
his car he knew had a history with drugs. These factors are weak, however, and
                                                       23
would not change the Court's analysis.

     In providing analysis for its holding that a rational juror could not have

determined beyond a reasonable doubt from the evidence that the Appellant

possessed the contraband, the Court below discussed why the links did not
                                                                                      24
constitute a "logical force" sufficient to prove possession.                                The strongest link

arguably is the contraband supposedly being in plain view of where the Appellant

was sitting in the vehicle. However, the court permissibly found the link to be

weak or non-existent because there was no evidence that the contraband was in
                                                                                                                        25
plain view or accessible to the Appellant at any time he was inside the vehicle.

The evidence must logically connect the accused to the contraband-without

evidence the contraband was in plain view at such a time the appellant was in the

vehicle this logical connection does not exist. 26

     The remaining factors also do not weigh heavily enough to create the "logical

force" necessary to sustain the conviction. Being the driver and (alleged) owner of


23
  While the lists of factors provided by courts are non-exclusive, generally "criminal history" is not included as a
factor to be considered in determining "knowing possession." Tate, 463 S.W.3d at 275 . Additionally, the Rules of
Evidence preclude the use of other acts to prove a person' s character in order to show that on a particular occasion
the person acted in accordance with the character. Tex. Rules Evid. 404(b)(I).

With regards to the Appellant's association with people he knew to have a history with drugs, familial or friendship
relationships are not generally strong factors showing an affirmative link to contraband. Robertson v. State, 80
S.W.3d 730, 739 (Tex.App.Houston [1 st Dist] 2002).
24
   Tate, 463 S.W.3d at 277, n. 8.
25
   Id at 276.
26
   Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App.2006).

                                                            7
                                                                                 27
the vehicle is insufficient, without other evidence to prove possession.              Nor does

combining these factors with the Appellant's proximity to where the drugs were

later located create legally sufficient evidence of the Appellant's guilt.

     As the Court below noted, Courts have held the evidence to be legally

insufficient under similar circumstances. 28                 The Court in Robertson held the

evidence legally insufficient when the State merely shows that a defendant was

driving a vehicle containing narcotics. 29 As in the present case, the contraband in

Robertson was discovered after the Appellant driver had been removed from the

vehicle and the passengers remained for a period of time. The Court held that the

evidence, even in the light most favorable to the verdict, did not create the logical

force necessary to allow a rational jury to find, beyond a reasonable doubt, that the

Appellant had knowledge of the presence of the contraband. 30 The Court below in

the present case did not err by reaching the same conclusion.

     The State posits this case is similar to Evans31 and the result here should be the

same. Factually, Evans is substantially different in that, among other things, law

enforcement observed the Appellant sitting within arms-length of the contraband

when the entered the residence and the Appellant stated "drugs" as the reason for



27
   Robertson, 80 S.W.3d at 736.
28
   Tate, 463 S.W.3d at 377.
29
   Id.; Robertson, 80 S.W.3d at 736.
30
   Robertson, 80 S.W.3d at 741.
31
   Evans v. State, 202 S.W.3d 150 (Tex.Crim.App.2008).

                                                         8
                                                                                      32
law enforcement presence at the house-arguably strong links to the contraband.

The present case contains no such links.         Legally, Evans is also substantially

different. This Court held the lower court "analyzed each one of these facts or

links in isolation" and that it "disregarded ... evidence." 33 The Court below in the

present case did not engage in such an exercise, but rather considered the evidence

taken in totality in holding it did not constitute a "logical force" sufficient to prove

possession. 34 Because of the substantial differences between Evans and the present

case, this court need not reach the same conclusion.

     4. Conclusion

     The Court below properly held the factors present did not create a "logical

force" the Appellant committed the offense of possession of a controlled

substance. The only factors on the record are that the Appellant was the driver and

alleged owner of the vehicle and the contraband was located in a compartment

within arms-reach of where the Appellant was sitting while driving. The record is

void of any evidence the contraband was within arms-reach while the Appellant

was sitting in the vehicle. Being the driver of a vehicle where contraband may or

may not have been in plain view is insufficient to sustain a conviction of guilt, and

the Court below did not err in so holding.



32
   See Id.
33
   Id. at L64.
34
   Tate, 463 S.W. 3d n. 8.

                                             9
                                          PRAYER
       WHEREFORE, the Appellant prays that this Court affirm the judgment of the

Second Court of Appeals.

                                           Respectfully submitted,
                                           Switzer I Oney Attorneys at Law, PLLC




                                           ATTORNEY FOR APPELLANT




                         CERTIFICATE OF COMPLAIANCE

       This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 1,996 words,
exclusive of the sections of the brief exempted by Rule 9.4(i)(l).



                                           Lynn Switzer




                                             10
                            CERTIFICATE OF SERVICE

      I hereby certify that a copy of the above and foregoing Appellant's Brief on the

Merits was served on the following via electronic filing or email on December 29, 2015:

John R. Messinger
Assistate State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
information© spa.texas .gov

Zachary Renfro
Special Prosecutor
304 Clay St.
Nocona, Texas76255
renfrolawoffice@gmail.com

Paige Williams
District Attorney
P.O. Box 55
Montague, Texas 76251
paige.williams@co.montague.tx.us




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