                                                                                  ACCEPTED
                                                                              12-15-00073-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         7/20/2015 4:35:19 PM
                                                                                CATHY LUSK
                                                                                       CLERK

                    No. 12-15-00073-CR

                                                           RECEIVED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                      7/20/2015 4:35:19 PM
                                                          CATHY S. LUSK
                                                              Clerk

               YAGO SANTAIN FOUNTAIN

                               Appellant,

                              v.                       7/20/2015
                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-0896-14




            ORAL ARGUMENT REQUESTED


                          Austin Reeve Jackson
                          Texas Bar No. 24046139
                          112 East Line, Suite 310
                          Tyler, TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                     IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Thad Davidson
329 S. Fannin Ave.
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES .......................................................................................... v
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 5

         Standard of Review .............................................................................................. 5

         Applying this Standard of Review to Drug Posession Cases ................................ 6

    I.      THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE
            THAT APPELLANT POSSESSED THE MARIJUANA
            RECOVERED ................................................................................................. 8

         A. The Factors Linking Mr. Fountain to the Marijuana Were Minor................ 10

         B. The Factors Not Linking Mr. Fountain to the Marijuana Were
            Significant ..................................................................................................... 11

CONCLUSION AND PRAYER .................................................................................. 23
CERTIFICATE OF SERVICE ..................................................................................... 24
CERTIFICATE OF COMPLIANCE ............................................................................ 24




                                                             iii
                                     INDEX OF AUTHORITIES


FEDERAL COURTS OF APPEAL:

United States v. Michelena-Orovio,
 702 F.2d 496 (5th Cir. 1983) ........................................................................ 22, 23

United States v. Ferg,
 504 F.2d 914 (5th Cir. 1974) ......................................................................... 19, 20

United States v. Gordon,
 700 F.2d 215 (5th Cir. 1983) ......................................................................... 21

United States v. Hernandez-Beltran,
 867 F.2d 224 (5th Cir. 1989) ......................................................................... 18

United States v. Littrell,
 574 F.2d 828 (5th Cir. 1978) ......................................................................... 22

United States v. Moreno-Hinojosa,
 804 F.2d 845 (5th Cir. 1986) ......................................................................... 21

United States v. Phillips,
 496 F.2d 1395 (5th Cir. 1974) ...................................................................... 9

United States v. Ramos,
 476 F.2d 624 (9th Cir. 1973) ......................................................................... 22

United States v. Schoor,
 462 F.2d 953 (5th Cir. 1972) ........................................................................ 22

United States v. Smith,
 20 Fed. Appx. 258 (6th Cir. 2001) ................................................................. 20-21

United States v. Stanley,
 24 F.3d 1314 (11th Cir. 1994) ....................................................................... 21

United States v. Zule,
 581 F.2d 1218 (5th Cir. 1978) ....................................................................... 22


                                                        iv
TEXAS COURT OF CRIMINAL APPEALS:

Brown v. State,
 911 S.W.2d 744 (Tex.Crim.App. 1995) ....................................................... 15, 18

Chambers v. State,
 711 S.W.2d 240 (Tex.Crim.App. 1986) ........................................................ 13

Cude v. State,
 716 S.W.2d 46 (Tex.Crim.App. 1986) ......................................................... 6

Curry v. State,
 30 S.W.3d 394 (Tex.Crim.App. 2000) ......................................................... 5

Davis v. State,
 947 S.W.2d 240 (Tex.Crim.App. 1997) ....................................................... 11

Deshong v. State,
 625 S.W.2d 327 (Tex.Crim.App. 1981) ....................................................... 8

Dewberry v. State,
 4 S.W.3d 735 (Tex.Crim.App. 1999) ........................................................... 5

Dickey v. State,
 693 S.W.2d 386 (Tex.Crim.App. 1984) ........................................................ 23

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

Fisher v. State,
  851 S.W.2d 298 (Tex.Crim.App. 1993) ....................................................... 5

Glass v. State,
 681 S.W.2d 599 (Tex.Crim.App. 1984) ........................................................ 10-11

Harvey v. State,
 487 S.W.2d 75 (Tex.Crim.App. 1972) ......................................................... 7, 13, 15

Hernandez v. State,
 517 S.W.2d 782 (Tex.Crim.App. 1975) ....................................................... 9

                                                    v
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

King v. State,
 895 S.W.2d 701 (Tex.Crim.App. 1995) ........................................................ 5

Lee v. State,
 214 S.W.2d 619 (Tex.Crim.App. 1948) ....................................................... 22

Martin v. State,
 753 S.W.2d 504 (Tex.Crim.App. 1985) ....................................................... 6

Matson v. State,
 819 S.W.2d 839 (Tex.Crim.App. 1991) ........................................................ 5

Meeks v. State,
 692 S.W.2d 504 (Tex.Crim.App. 1985) ....................................................... 6

Narvaiz v. State,
 840 S.W.2d 415 (Tex.Crim.App. 1992) ....................................................... 5

Oaks v. State,
 642 S.W.2d 174 (Tex.Crim.App. 1982) ........................................................ 15

Poindexter v. State,
 153 S.W.3d 402 (Tex.Crim.App. 2005) ....................................................... 6, 8, 9

Pollan v. State,
 612 S.W.2d 594 (Tex.Crim.App. 1981) ........................................................ 6-7

Urbano v. State,
 837 S.W.2d 114 (Tex.Crim.App. 1992) ....................................................... 23

Valdez v. State,
 623 S.W.2d 317 (Tex.Crim.App. 1981) ....................................................... 18

Wesbrook v. State,
 29 S.W.3d 103 (Tex.Crim.App. 2000) ......................................................... 5

Williamson v. State,
 244 S.W.2d 202 (Tex.Crim.App. 1951) ....................................................... 22, 23

                                                   vi
TEXAS COURTS OF APPEAL:

Aguilar v. State,
 279 S.W.3d 350 (Tex.App.—Austin 2007) .................................................. passim

Allen v. State,
  249 S.W.3d 680 (Tex.App.—Austin 2008) .................................................. passim

Bates v. State,
 155 S.W.3d 212 (Tex.App.—Dallas 2004) .................................................. 7

Batiste v. State,
 217 S.W.3d 74 (Tex.App.—Houston [1st Dist.] 2006) ................................ 7

Brazier v. State,
 748 S.W.2d 505 (Tex.App.—Houston [1st Dist.] 1998) ............................... 13

Cedano v. State,
 24 S.W.3d 406 (Tex.App.—Houston [1st Dist.] 2000) ................................ 13

Copeland v. State,
 747 S.W.2d 14 (Tex.App.—Houston [1st Dist.] 1988) ................................ 13

De la Garza v. State,
 898 S.W.2d 376 (Tex.App.—San Antonio 1995).......................................... 13-14

Edwards v. State,
 178 S.W.3d 139 (Tex.App.—Houston [1st Dist.] 2005) .............................. 10, 11

Flores v. State,
  756 S.W.2d 86 (Tex.App.—San Antonio 1988) ........................................... 9

Garcia v. State,
 218 S.W.3d 756 (Tex.App.—Houston [1st Dist.] 2007) .............................. 7

Gilbert v. State,
 874 S.W.2d 290 (Tex.App.—Houston [1st Dist.] 1994) .............................. 9-10, 13

Grant v. State,
 989 S.W.2d 428 (Tex.App.—Houston [14th dist.] 1999) ............................. 8

                                                vii
TEXAS COURTS OF APPEAL (CON’T):

Gomez v. State,
 331 S.W.3d 832 (Tex.App.—Amarillo 2011) ............................................... 23

Hurtado v. State,
 881 S.W.2d 738 (Tex.App.—Houston [1st Dist.] 1994) ............................... 10

Lassaint v. State,
 79 S.W.3d 736 (Tex.App.—Corpus Christi 2002) ....................................... 11-12

Mares v. State,
 801 S.W.2d 121 (Tex.App.—San Antonio 1990).......................................... 15

Moreno v. State,
 821 S.W.2d 344 (Tex.App.—Waco 1991) .................................................... 18

Roberson v. State,
 80 S.W.3d 730 (Tex.App.—Houston [1st Dist.] 2002) ................................. 7, 17, 21

Taylor v. State,
 106 S.W.3d 827 (Tex.App.—Dallas 2003) .................................................. 13

Villegas v. State,
  871 S.W.2d 894 (Tex.App.—Houston [1st dist.] 1994) ............................... 10

Whitworth v. State,
 808 S.W.2d 566 (Tex.App.—Austin 1991) .................................................. 11

Williams v. State,
 906 S.W.2d 58 (Tex.App.—Tyler 1995) ....................................................... 7

Willis v. State,
 192 S.W.3d 585 (Tex.App.—Tyler 2006) .................................................... 8




                                                 viii
STATUTES:

TEX. HEALTH & SAFETY CODE § 481.002 ......................................................... 6

TEX. PEN. CODE § 1.03(b) ................................................................................. 6




                                                          ix
                           No. 12-15-00073-CR


                IN THE TWELFTH COURT OF APPEALS
                          TYLER, TEXAS


                     YAGO SANTAIN FOUNTAIN

                                       Appellant,

                                     v.

                        THE STATE OF TEXAS

                                          Appellee



     On Appeal from the 114th District Court of Smith County, Texas
                     Trial Cause No. 114-0896-14




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes now, Yago Fountain, by and through his attorney of record,

Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of

Appellate Procedure, and would show the Court as follows:
                      STATEMENT OF THE CASE

      Yago Fountain seeks to appeal his conviction and sentence for the fel-

ony offense of possession of marijuana, rendered against him in March of

this year in the 114th District Court of Smith County. (I CR 117). Mr.

Fountain was indicted for this offense in June of last year, entered a plea of

“not guilty,” and proceeded to trial by jury. (I CR 1, 117). Ultimately, Mr.

Fountain was convicted and sentenced to serve a term of ten years’ confine-

ment. (I CR 117). Sentence was pronounced on 17 March 2015 and notice

of appeal then timely filed. (I CR 117, 142).

                          ISSUES PRESENTED

      I.     THE EVIDENCE WAS LEGALLY INSUFFICIENT
             TO PROVE THAT APPELLANT POSSESSED THE
             MARIJUANA RECOVERED.

                     STATEMENT OF THE FACTS

      In September of 2013 a local DPS trooper was patrolling an area of I-

20 within Smith County. (XI RR 40). While doing so, he observed a vehi-

cle pass that, contrary to the law, did not have a working light over its li-

cense plate. (XI RR 42). For this reason, the officer initiated a traffic stop

of the vehicle as it travelled eastbound towards Shreveport. (XI RR 43).




                                      2
      As he approached the now-stopped car, the officer observed two oc-

cupants: the driver, Mr. Lapatrick Mitchell, and the passenger, Mr. Yago

Fountain, the Appellant in this case. (XI RR 45). According to the officer,

Mr. Yago had unbuckled his seatbelt and appeared nervous and “very odd.”

(Id.). Consequently, the officer, who by then had also determined that nei-

ther Mr. Fountain nor Mr. Mitchell were the registered owners of the vehi-

cle, began to question the two occupants regarding their trip. (XI RR 50).

      In response to questioning, Mr. Mitchell explained that the two had

travelled to Dallas to fix or purchase a new tire. (XI RR 50-51). Additional-

ly, Mr. Mitchell stated that they had taken Mr. Fountain’s aunt to Dallas.

(XI RR 51). Mr. Fountain gave a similar version of events, though not ex-

actly the same, but did say it was Mr. Mitchell’s aunt, not his, that was taken

to Dallas. (XI RR 57-58); (see also XI RR 58-59 discussing other, minor in-

consistencies).

      Based on what he was observing, the officer requested, and Mr.

Mitchell granted, consent to search his vehicle. (XI RR 61). The search ini-

tially failed to reveal any contraband but the officer did discover some plas-

tic wrap and axle grease; items he said could be used to hide drugs from

drug dogs. (XI RR 63). However, as the officer stuck his head underneath

the dash on the driver’s side of the car, he noticed the smell of marijuana.



                                      3
(XI RR 64). This led him to open the hood of the car where he discovered

wrapped bundles of marijuana sitting on top of the engine. (XI RR 66-67).

Mr. Mitchell’s response to the discovery was to remain silent when ques-

tioned while Mr. Yago adamantly stated “it wasn’t his.” (XI RR 144).

      After finding the marijuana the officer arrested both Mr. Fountain and

Mr. Mitchell for the felony offense of possession of marijuana. (XI RR

144). In June of last year, Mr. Fountain was indicted for this offense and en-

tered a plea of “not guilty.” (I CR 1, 117). Following a trial by jury in the

114th District Court, Mr. Fountain was convicted and sentenced to serve a

term of ten years’ confinement. (I CR 117). Sentence was pronounced on

17 March 2015 and notice of appeal then timely filed. (I CR 117, 142).

                     SUMMARY OF THE ARGUMENT

      Where the record before the Court, even viewed in the light most fa-

vorable to the verdict, shows only that a defendant may have been present at

the same location as drugs seized from a vehicle in which he was a passen-

ger, the evidence is legally insufficient to support a conviction for posses-

sion of that drug.




                                      4
                               ARGUMENT

      Standard of Review

      Whether evidence is legally sufficient is a question of law reviewed in

the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103,

111 (Tex.Crim.App. 2000); Matson v. State, 819 S.W.2d 839, 846

(Tex.Crim.App. 1991). The issue before the Court is whether a rational trier

of fact could have found all the elements of the offense beyond a reasonable

doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). When

undertaking this review the Court will not reweigh or resolve conflicts in the

evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).

Any inconsistencies that may be present are resolved in favor of the verdict.

Curry, 30 S.W.3d at 406. However, “if, based on all the evidence, a reason-

ably minded jury must necessarily entertain a reasonable doubt of the de-

fendant’s guilt, due process requires that [the Court] reverse and order a

judgment of acquittal.”        Fisher v. State, 851 S.W.2d 298, 302

(Tex.Crim.App. 1993) (quoting Narvaiz v. State, 840 S.W.2d 415, 423

(Tex.Crim.App. 1992). This standard applies to both direct and circumstan-

tial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).




                                      5
      Applying this Standard of Review to Drug Possession Cases

      Applying these standards to cases where a defendant has been alleged

to be in possession of a controlled substance, the Court of Criminal Appeals

has held that, as an essential element of their case, the State must prove that

a defendant exercised control, management, or care of the substance and that

the accused knew that the matter possessed was contraband. Poindexter v.

State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see also TEX. HEALTH &

SAFETY CODE ANN. 481.002(38) (Vernon 2007); TEX. PEN. CODE ANN. §

1.03(b) (Vernon 2007). Possession may be proved by direct or circumstan-

tial evidence, but the evidence must be such that it establishes a defendant’s

connection with a drug was more than “fortuitous.” Id.

      In establishing possession the State does not have to prove that a de-

fendant had sole or exclusive possession of a controlled substance. Cude v.

State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). However, a defendant’s

mere presence, particularly where he did not have exclusive possession of

the location where the contraband was found, is insufficient in and of itself

to establish possession.       Evans v. State, 202 S.W.3d 158, 162

(Tex.Crim.App.     2006);   Martin    v.   State,   753   S.W.2d   384,    387

(Tex.Crim.App.     1988);   Meeks    v.    State,   692   S.W.2d   504,    511

(Tex.Crim.App.     1985);   Pollan    v.   State,   612   S.W.2d   594,    596



                                       6
(Tex.Crim.App. 1981); Batiste v. State, 217 S.W.3d 74, 80 (Tex.App.—

Houston [1st Dist.] 2006, no pet.). Neither does a defendant’s presence in

the vicinity of contraband itself, or others using or possessing the same, sup-

port a finding that that person is a joint possessor or a party to the offense.

Harvey v. State, 487 S.W.2d 75, 77 (Tex.Crim.App. 1972); Garcia v. State,

218 S.W.3d 756, 763 (Tex.App.—Houston [1st Dist.] 2007, no pet.).; Rob-

erson v. State, 80 S.W.3d 730, 735 (Tex.App.—Houston [1st Dist.] 2002,

pet. ref’d). Thus, the critical inquiry is “whether there was evidence of cir-

cumstances, in addition to mere presence, that would adequately justify the

conclusion that the defendant knowingly possessed the substance.” Evans,

202 S.W.3d at 162 n.9. There is neither a set formula nor a minimum num-

ber of “links” needed to establish possession. Bates v. State, 155 S.W.3d

212, 216-17 (Tex.App.—Dallas 2004, no pet.); Williams v. State, 906

S.W.2d 58, 65 (Tex.App.—Tyler 1995, pet. ref’d).




                                      7
      I.    THE EVIDENCE WAS LEGALLY INSUFFICIENT
            TO PROVE THAT APPELLANT POSSESSED THE
            MARIJUANA RECOVERED.

      Because Mr. Fountain was one of two persons who were present in

the vehicle in which the marijuana was found and did not have exclusive

control over the vehicle in which it was located, there must be “additional

independent facts and circumstances connecting or linking the accused to the

knowing possession of contraband.” Allen v. State, 249 S.W.3d 680, 690-91

(Tex.App.—Austin 2008, no pet.) (citing Willis v. State, 192 S.W.3d 585,

593 (Tex.App.—Tyler 2006, pet. ref’d). Therefore, in order to support Mr.

Fountain’s conviction, at trial the State must have produced evidence that

showed “more than a strong suspicion or mere probability of guilt.” Id. at

693 (citing Grant v. State, 989 S.W.2d 428, 433 (Tex.App.—Houston [14th

Dist.] 1999, no pet.)). As the Court of Criminal Appeals has held:

      [W]hen 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 un-
      less there are additional independent facts and circumstances
      which affirmatively link the accused to the contraband.

Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327,

329 (Tex.Crim.App. 1981)). In particular, where contraband has been hid-

den “the State must link the accused to the contraband in such a manner that

a reasonable inference arises that the accused knew of its existence and its



                                     8
whereabouts and that the object possessed was contraband.” Allen, 249

S.W.3d at 694; see also Poindexter, 153 S.W.3d at 406. “Proof of mere

proximity to contraband is insufficient to establish actual constructive pos-

session or the element of knowledge.” Allen, 249 S.W.3d at 695 (citing

United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1974); Hernandez v.

State, 517 S.W.2d 782, 784 (Tex.Crim.App. 1975); Flores v. State, 756

S.W.2d 86, 88 (Tex.App.—San Antonio 1988, pet. ref’d). To establish this

proof in the context currently before the Court, where the defendant and con-

traband are in a vehicle, courts have looked to such factors as:

      1. Was the contraband in plain view;

      2. Was the contraband conveniently accessible to the accused;

      3. Was the accused the owner of the vehicle;

      4. Was the accused the driver of the vehicle;

      5. Was the contraband on the same side of the vehicle as the
         accused;

      6. Was the contraband in plain view;

      7. Was there an odor of the contraband;

      8. Did the accused have any other paraphernalia on his person;

      9. Did the physical condition of the accused indicate consump-
         tion of the contraband found; and

      10. Did the accused engage in conduct indicating a
          consciousness of guilt?

                                       9
Gilbert. v. State, 874 S.W.2d 290, 298 (Tex.App.—Houston [1st Dist.] 1994,

pet. ref’d); see also Evans, 202 S.W.3d at 161 n.9; Edwards v. State, 178

S.W.3d 139, 143 (Tex.App.—Houston [1st Dist.] 2005, no pet.). A review

of these factors in the instant case reveals that the State failed to make its

burden in this case.

      A. The Factors Linking Mr. Fountain to the Marijuana Were Minor

      First, Appellant would concede that Mr. Fountain was in the vehicle

from which the marijuana was recovered and that can be a factor tending to

indicate possession. (XI RR 45); Gilbert, 874 S.W.2d at 298; see also Hur-

tado v. State, 881 S.W.2d 738, 743 (Tex.App.—Houston [1st Dist.] 1994,

pet. ref’d); see Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.—Houston

[1st Dist.] 1994, pet. ref’d). Additionally, the detaining officer described

Mr. Fountain as being “nervous,,” another fact that can indicate an con-

sciousness of guilt. (XI RR 56). However, it is important to remember, as

the Court of Criminal Appeals has noted:

      We believe that in this day and time that when a citizen is sud-
      denly facing an imminent confrontation with police officers for
      unknown reasons, most citizens with nothing to hide will never-
      theless manifest an understandable nervousness in the presence
      of the officer. Not only the guilty, but the not guilty as well,
      will react much the same … exercising a natural impulse.
      Thus, the appearance of being nervous is as consistent with a
      person being guilty of having committed or preparing to com-
      mit a criminal wrong as with a person not being guilty of any-
      thing more than being in the wrong place at the wrong time.

                                     10
Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984); see also Davis

v. State, 947 S.W.2d 240, 248 (Tex.Crim.App. 1997) (same).

      Finally, the officer raised questions about the conflicting stories Mr.

Fountain and the driver gave as to their reason for traveling to Dallas. (XI

RR 57-59). Here, the Court should note that although the officer found it

unbelievable that someone would drive from Shreveport to Dallas to save

money when buying a wheel, there was, in fact, a newly purchased wheel in

the car. (XI RR 104).

      Even assuming that these factors indicate some consciousness of guilt,

they constitute almost the entirety of the evidence against Mr. Fountain and

when the Court considers this evidence in light of the record as a whole, the

weight the Court should give this factor is significantly less than it may ini-

tially appear. See Edwards, 178 S.W.3d at 143 (the issue before an appellate

court is the logical force of the various factors in light of the record as a

whole); Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.—Austin 1991,

pet. ref’d) (same).

      B. The Factors Not Linking Mr. Fountain to the Marijuana Were
         Significant

      For example, the record makes clear that there was no odor of contra-

band that would reasonably put a nearby person on notice as to what may

have been hidden in the engine area of the vehicle. (XI RR 64); See, e.g.,

                                      11
Lassaint v. State, 79 S.W.3d 736, 744 (Tex.App.—Corpus Christi 2002, no

pet.) (discussing odor of drugs as possible link). In fact, the detaining of-

ficer testified that the limited odor of marijuana he did observe was discov-

ered only after he put his head “up underneath [the] dash” of the car; it could

not be detected merely by entering the vehicle. (XI RR 124-25). Moreover,

the odor was discovered on the driver’s side of the vehicle’s dash opposite

where Mr. Fountain was seated:

      I stand by my statement that I didn’t smell [the marijuana] until
      I started searching the vehicle and actually stuck my head on
      the driver’s side up into the dash. When I was looking in that
      area, that’s when I smelled it.

(XI RR 108).

      Given the location of the marijuana, under the hood and resting on top

of the engine, there can also be no argument but that the marijuana was not

in plain sight and not then under the direct control of Mr. Fountain. (XI RR

66, 110) As such, the record fails to reveal any direct or circumstantial evi-

dence that Mr. Fountain had actual knowledge of what, if anything, another

person may have placed under the hood of the car. See Allen, 249 S.W.3d at

695; Lassaint, 79 S.W.3d at 746 (proving mere proximity to contraband is

not legally sufficient to prove possession).




                                      12
      Importantly, when asked about the marijuana, Mr. Fountain made no

incriminating statements, he did not attempt to flee, was not then under the

influence of any illegal substance, and was not found to be in possession of

any other contraband. Gilbert, 874 S.W.2d at 298; See also Copeland v.

State, 747 S.W.2d 14, 16-17 (Tex.App.—Houston [1st Dist.] 1988, no pet.)

(evidence was insufficient to link passenger to marijuana that passenger tes-

tified was thrown onto the floorboard by the vehicle’s driver), rev’d in part

by Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App. 1986); but see Har-

vey, 487 S.W.2d at 77 (the State is not required to prove exclusive posses-

sion); Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.—Houston [1st Dist.]

2000, no pet) (same); Brazier v. State, 748 S.W.2d 505, 508 (Tex.App.—

Houston [1st Dist.] 1998, pet. ref’d) (affirmative link existed between both

passenger and driver); see Taylor v. State, 106 S.W.3d 827, 831

(Tex.App.—Dallas 2003, no pet.) (discussing factors).

      Finally, there was no evidence that Mr. Fountain owned or ever oper-

ated the vehicle from which the contraband was recovered, his fingerprints

were not found on the marijuana packaging, and there were no firearms or

other weapons located on or near either Mr. Fountain or the driver of the ve-

hicle. (XI RR 49, 57, 110, 113, 135). Evans, 202 S.W.3d at 161 n.9 (dis-

cussing factors to consider including ownership); De la Garza v. State, 898



                                     13
S.W.2d 376, 379 (Tex.App.—San Antonio 1995, no pet.) (discussing pres-

ence of firearm as a factor). Even the officer who arrested Mr. Fountain

admitted that the only reason he did so was, basically, because the drugs had

to belong to somebody:

      State: All right. [Defense counsel] asked you if you ever saw
      Mr. Fountain or [the driver] in control or management or custo-
      dy of the marijuana. Did you actually see them place it there or
      move it or remove it?

      Officer: No, sir, I did not.

      State: Well, why is it that you arrested Mr. Fountain then?

      Officer: Because the marijuana’s in the – I mean, there’s a
      large sum of marijuana. Somebody put it there. It’s in the
      structure of the vehicle. I mean, you don’t borrow somebody’s
      car, and they leave 10 pounds of marijuana in there. That’s not
      – that’s not feasible.

      …

      Took them both into custody. I read them both their Miranda
      rights. Tried to, you know, -- “Hey, who’s is this?” You know,
      there’s – it’s not like it was in his pocket or in a bag. It’s in the
      structure of the vehicle.

      I asked them whose it was, and you know, [the driver] refused
      to speak, and Mr. [Fountain] just said it wasn’t his. That’s all I
      got.

(XI RR 143-44).




                                       14
      But if that is all the State has they should not have a conviction: the

law does not permit an officer to arrest or a jury to convict someone just be-

cause they happen to be in a location where drugs were recovered and, well,

they must belong to somebody. Allen, 249 S.W.3d at 691; Evans, 202

S.W.3d at 162; Harvey, 487 S.W.2d at 77.

      In fact, mere presence does not make an accused a party to joint pos-

session even if the accused knows of the existence of the contraband and has

knowledge of an offense.         Oaks v. State, 642 S.W.2d 174, 177

(Tex.Crim.App. 1982); Allen, 249 S.W.3d at 692; Mares v. State, 801

S.W.2d 121, 126 (Tex.App.—San Antonio 1990, no pet.) Thus, where, as

here, even in the light most favorable to the State all that was shown was

that Mr. Fountain was in the mere presence of contraband, the overwhelming

lack of any meaningful evidence that he exercised actual or constructive

care, custody, or control over the marijuana reveals that he did not legally

posses it. See, e.g., Allen, 249 S.W.3d at 693 (holding that the central issue

in cases of this nature is whether the proof at trial showed “more than a

strong suspicion or mere probability of guilt”); see also Brown v. State, 911

S.W.2d 744, 747 (Tex.Crim.App. 1995) (evidence linking defendant to con-

traband must show that the connection was something more than fortuitous).




                                     15
      Viewing the State’s evidence in the checklist form outlined by the

Court of Criminal Appeals in Evans makes the quality of its evidence clear:

Was Mr. Fountain present at the sce- Yes. (XI RR 45).
ne when contraband was found?
Was Mr. Fountain in proximity to Yes, but only through the metal and
narcotics?                       plastic of the vehicle’s dash as the
                                 marijuana was under the hood and
                                 not in the vehicle’s passenger com-
                                 partment. (XI RR 66).
Were the narcotics in plain view?      No. (XI RR 110).


Was Mr. Fountain under the influ- No. (XI RR gen.).
ence when arrested?

Was Mr. Fountain in possession of No. (XI RR 144; XI RR gen.).
other contraband or narcotics when
arrested?
Did Mr. Fountain make incriminat- No, in fact, while Mr. Mitchell re-
ing statements when arrested?     mained silent, Mr. Fountain denied
                                  the drugs were his. (XI RR 92).


Did Mr. Fountain attempt to flee No. Mr. Fountain fully cooperated
when arrested?                   with the officer. (XI RR 100-01,
                                 118).


Did Mr. Fountain make any furtive No. (XI RR 100-01, 118).
gestures when arrested?




                                     16
Was there an odor of narcotics?        Not from where Mr. Fountain was
                                       seated. The odor could only be de-
                                       tected when one placed their head
                                       “up under the dash” on the driver’s
                                       side of the car. (XI RR 64, 106, 108,
                                       124).


Was there other contraband present?    No. However, there was a small
                                       amount of plastic wrap and axle
                                       grease in the car, two things the of-
                                       ficer testified are sometimes used to
                                       mask the odor of drugs. (XI RR 63).


Did Mr. Fountain have the right to No. The vehicle in which he was
possess the place where the narcotics merely a passenger was not his and
were found?                           had been borrowed by Mr. Mitchell
                                      from a friend of Mr. Mitchell’s. (XI
                                      RR 49, 57).
Did Mr. Fountain have a large No. (XI RR gen.).
amount of cash or weapon on or
about his person?


Did Mr. Fountain’s behavior indicate No. He cooperated fully with offic-
a consciousness of guilt?            ers. (XI RR 100-01, 118).


Evans, 202 S.W.3d at 162 n.12.

      Viewing these factors in totality reveals that the record is lacking in

both substance and “logical force” to support the conclusion that Mr. Foun-

tain is guilty of the charged offense. Roberson v. State, 80 S.W.3d 730, 735

(Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (standard of review). At


                                      17
best, the factors tend to show that Ms. Fountain associated with the driver

who was much more closely linked with the marijuana, but this is an offense

for which he cannot be convicted and punished. Valdez v. State, 623 S.W.2d

317, 321 (Tex.Crim.App. 1981) (op. on reh’g).

      This case is similar to that of Moreno v. State, 821 S.W.2d 344, 352

(Tex.App.—Waco 1991, pet. ref’d), in which the Waco Court of Appeals

held that the evidence in that case was insufficient to prove the defendant

possessed 745 grams of cocaine found under the hood of a vehicle in which

he was a passenger (even where officers found eleven grams of cocaine in

the defendant’s wallet). In that case, the Waco Court held the evidence was

insufficient to affirmatively link the defendant to the cocaine under the hood

of the vehicle because the defendant: (1) was not connected with the owner-

ship or control of the car; (2) made no furtive gestures; (3) did not attempt to

escape; (4) made no incriminating statements; (5) was not under the influ-

ence of an illegal drug; and, (6) the odor of an illegal drug was not present in

or around the vehicle. Id.; see also Brown v. State, 911 S.W.2d 744, 748

(Tex.Crim.App. 1995) (“[E]ach defendant must … be affirmatively linked

with the drugs he allegedly possessed[.]”); United States v. Hernandez-

Beltran, 867 F.2d 224, 226-27 (5th Cir. 1989) (same).




                                      18
      The State seems to discount such holdings and instated argued that

any person in the car could have been arrested, prosecuted, and convicted

merely for being in the vehicle. (XI RR 200). Consider the incredibly ex-

pansive definition of possession the State urged the jury to adopt in this case:

      If you were to walk – if you were to walk into someone’s home
      and they had a bag – they had a desk, you walk over to a
      friend’s house for tea or you walk over to go watch a movie,
      and this [marijuana] right here is setting, you know, on the cof-
      fee table, you’re in possession of it. That’s the truth of it.
      That’s what the law says. You are in possession of it.

(XI RR 200).

      But that is not “the truth of it” and it is certainly not “what the law

says.” As explained by the Fifth Circuit in United States v. Ferg, 504 F.2d

914, 917 (5th Cir. 1974):

      The facts of this case illustrate the logic of this “mere presence”
      rule. The government presents only two pieces of circumstan-
      tial evidence in an attempt to link Ferg with the seized marijua-
      na. Ferg was traveling with Shaw, the person who admitted
      having purchased the marijuana, and Ferg was a passenger in
      the car in which the marijuana was concealed. Beyond the ad-
      mission by Ferg that he was a traveling companion of one
      guilty of illegal possession of marijuana, the government failed
      to establish that Ferg in any way violated [the federal drug stat-
      ute]. The government’s evidence failed to prove that Ferg had
      ever maintained possession of the contraband or had any inten-
      tion of participating in the distribution of it [and] his companion
      in no way implicated Ferg in the statement he made to federal
      agents. There was no evidence to show that Ferg and Shaw had
      traveled together for a sustained period of time after the mariju-
      ana was admittedly obtained by Shaw. Moreover, the govern-
      ment did not establish that Ferg had rented the car or even

                                      19
      shared the cost of rental. It was not even shown or claimed that
      Ferg had ever driven the car or that he could drive an automo-
      bile. We do not accept the government’s apparent invitation to
      infer guilty by association.

Id. at 917.

      The Sixth Circuit has held the same:

      The government presented no direct evidence of actual posses-
      sion by Smith [the defendant]. In fact, there is no direct evi-
      dence that he knew of the drugs or exercised control over the
      drugs or the vehicle, or that he was anything other than a pas-
      senger in the vehicle. Thus, the issue before us is whether the
      government presented sufficient circumstantial evidence to es-
      tablish that Smith constructively possessed the methampheta-
      mine and the amphetamine with the intent to distribute the
      drugs.

      …

      While the evidence may have been sufficient to establish con-
      structive, if not actual possession, of these drugs by the posses-
      sor and driver of the vehicle, the problem with the convictions
      of Smith, a passenger, is the lack of evidence showing any pos-
      session of these drugs by him. The government presented no
      evidence that Smith exercised any control over or had access to
      these drugs. The drugs were found in a bag, covered by a shirt,
      on the floor behind the driver’s seat. Additionally, the govern-
      ment presented no evidence that Smith exercised any type of
      control over the vehicle the bag in which the drugs were locat-
      ed. The government’s only evidence was that Smith was a pas-
      senger in a vehicle which contained drugs likely intended for
      distribution…. The government also failed to present any evi-
      dence to support Smith’s conviction on an aiding and abetting
      theory. Even if Smith was aware of the drugs or the driver’s
      involvement in illegal activity, that awareness would be insuffi-
      cient to convict him of aiding an abetting possession of drugs
      with intent to distribute.



                                     20
United States v. Smith, 20 Fed. Appx. 258 (6th Cir. 2001) (unpublished) (cit-

ed for reference only); see Roberson v. State, 80 S.W.3d 730, 741

(Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (no evidence beyond mere

presence of three individuals in car together suggesting that they were work-

ing as a unit for any purpose); see also United States v. Stanley, 24 F.3d

1314, 1320-21 (11th Cir. 1994) (possession with intent to distribute convic-

tion reversed because of lack of evidence that defendant passenger in vehicle

had any knowledge of crack cocaine hidden under the dashboard); United

States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) (“Even if [the

passenger] knew that [the driver] was making an illegal marijuana run, this

fact would not be sufficient evidence to establish his possession without an

additional showing that he was riding in the truck to participate in the pos-

session and distribution.   The government did not make this additional

showing even circumstantially beyond a reasonable doubt.”); United States

v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983) (“We are unable to find any

evidence, beyond McMahon’s ‘mere presence’ in the truck, to indicate that

he had maintained control over the contraband, hand any intention of partic-

ipating in the distribution of the contraband, or had any knowledge of it

whatsoever. To affirm the defendant’s conviction would be to countenance

a conviction based on guilt by association.”); United States v. Zule, 581 F.2d



                                     21
1218, 1221 (5th Cir. 1978) Constructive possession not shown where there

was no evidence that defendant owned or had control of car from which an-

other person removed contraband or that defendant had handled the contra-

band at any time); United States v. Littrell, 574 F.2d 828, 835 (5th Cir.

1978) (constructive possession not shown where there was no evidence that

defendant owned the car or was aware of cocaine presence in glove com-

partment or that he ever handled the cocaine at any time); United States v.

Ramos, 476 F.2d 624, 625 (9th Cir. 1973) (It is “well established that a pas-

senger may not be convicted [of possession] unless there is evidence con-

necting him with the contraband, other than his presence in the vehicle.”).

      “In the final analysis … criminal substantive due process protects the

accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.”

United States v. Michelena-Orovio, 702 F.2d 496, 506 (5th Cir. 1983); Unit-

ed States v. Schoor, 462 F.2d 953, 959 (5th Cir. 1972); Williamson v. State,

156 Tex.Crim. 520, 244 S.W.2d 202, 204 (Tex.Crim.App. 1951); Lee v.

State, 152 Tex.Crim. 401, 214 S.W.2d 619, 622 (Tex.Crim.App. 1948).

Thus where the evidence, as it does here, reveals only that an accused may

have had the ability and opportunity to commit a crime, that is, the ability

and opportunity to posses the marijuana, that in and of itself is insufficient to



                                       22
satisfy the standard of proof of the commission of an offense beyond a rea-

sonable doubt. Michelena-Orovio, 702 F.2d at 506; see also Urbano v.

State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Dickey v. State, 693

S.W.2d 386, 389 (Tex.Crim.App. 1984); Williamson v. State, 244 S.W.2d at

204. Based then on this record, Mr. Fountain would respectfully pray that

the Court hold the conviction to not be supported by legally sufficient evi-

dence and reverse the judgment of the trial court and render a judgment of

acquittal. Gomez v. State, 331 S.W.3d 832, (Tex.App.—Amarillo 2011, pet.

ref’d) (remedy for legal insufficiency is to reverse and render).

                      CONCLUSION AND PRAYER

      Wherefore, premises considered, Mr. Fountain respectfully prays, be-

cause the record before the Court is legally insufficient to support his con-

viction, that the judgment of the trial court be reversed and a judgment of

acquittal be rendered.

                                              Respectfully submitted,

                                              /s/ Austin Reeve Jackson
                                              Texas Bar No. 24046139
                                              112 East Line, Suite 310
                                              Tyler, TX 75702
                                              Telephone: (903) 595-6070
                                              Facsimile: (866) 387-0152




                                      23
                       CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to

counsel for the State by efile mail concurrently with its filing in the Court.



                                               /s/Austin Reeve Jackson


                   CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule

9.4 and consists of 5,152 words.

                                               /s/ Austin Reeve Jackson




                                       24
