
 


 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0109-10


JAMES BLACKMAN, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY



Hervey, J., delivered the opinion of the Court in which Keller, P.J., Price,
Womack, Johnson, Keasler and Cochran, JJ., joined.  Meyers, J., filed a dissenting
opinion.	

O P I N I O N


	A jury convicted appellant of possessing with intent to deliver a controlled substance (three
kilograms of cocaine with a street value of about $300,000).  This cocaine was found behind the seat
of the driver of a van in which appellant was a front-seat passenger.  We exercised our discretionary
authority to review the court of appeals's 2-1 decision that the evidence is legally insufficient to
support the possession element of this offense.  See Blackman v. State, No. 01-08-00138-CR, slip
op. at 27 (Tex.App.-Houston [1st Dist.], delivered December 22, 2009) (State failed to prove beyond
a reasonable doubt "that appellant exercised knowingly actual care, custody, control, or management
over the cocaine") and at 29 (no evidence that appellant was a party to the van-driver's possession
of the cocaine). (1)  We will reverse.
	The evidence shows that experienced Pasadena Police Department narcotics investigators
were conducting surveillance late at night at a Super 8 Motel just off Interstate 10 when they noticed
three men (Gordon, Ayala-Garcia, and appellant) arrive together at the motel in a mini-van with
North Carolina license plates. (2)  The van had been rented in St. Petersburg, Florida, from where the
three men had traveled hundreds of miles together to the Super 8 Motel in Pasadena.  Testimony was
presented through officers conducting the surveillance that the Houston/Pasadena area is a hub or
corridor for narcotics trafficking along Interstate 10 east and west, that narcotics traffickers
commonly come from Florida via Interstate 10 to the Houston/Pasadena area to purchase narcotics,
and that narcotics traffickers commonly use rented vehicles on these trips because rented vehicles
are not subject to forfeiture if the traffickers are caught.  The officers ended their surveillance at the
Super 8 Motel later that night once they "were comfortable the occupants of the van and the van
were not going to leave for that evening [sic]." (3)
	The next morning, several narcotics officers in different locations continued surveillance of
the three men at the motel.  A narcotics investigator (Neilon) described the surveillance as a "rolling"
surveillance, during which it was not possible to see what appellant and the other two men were
doing at all times.
	Q. [STATE]: In talking to the jury about how you're talking about reestablishing
your surveillance and how you perform your surveillance, what techniques do you
use to try and disguise your surveillance vehicles?

	A. [NEILON]: Lots of times when we do what we call a rolling surveillance, so it's
not always one person that's directly in visual contact.  There's always somebody
else, but you may turn down a street and have to loop around the block or-and
especially once they stop, you may have to go around the block to try to get a better
vantage point where people are sitting and seeing through trees or trucks may pull up
and block your view.  So, you know, there's constant movement a lot of the times
when out on surveillance.  So, sometimes I may have an eye, physical eye on people
for an hour, sometimes it may be five minutes and then somebody will do it.  So, we
reposition ourselves as we have to be very fluid with traffic.

	Neilon observed the men load their luggage into the van, and drive away together in the van
after checking out of the motel with Gordon driving, appellant in the front passenger seat and Ayala-Garcia in the rear passenger seat behind appellant.  Neilon testified that he did not see appellant "in
that van in anyplace other than the front passenger's seat" at any point during that day "when the van
was rolling or moving."  From the motel, the three men traveled together in the van to a tire shop to
have one of the tires on the van repaired.  They kind of mingled around, and "[a]ll three of them
talked on cellphones kind of just back and forth together around the area of the tire shop" no further
than "five to ten" feet apart at the most.
	From the tire shop, the three men traveled together in the van to a "small ... hand car wash"
where "[y]ou put coins in and use the wand to spray your car after."  The men payed two males
loitering around the parking lot to wash the van.  While these two males washed the van, appellant
and the other two men from the van were using their cellphones and "standing around in a group
walking back and forth just kind of hanging around like waiting on something."  After this, the van
was taken to the vacuums and appellant and the others unloaded the luggage from the van, never
leaving it unattended while the van was being vacuumed by the same two males who had washed
it.  The washing and the vacuuming of the van took about 45 minutes.
	After the vacuuming was done and the luggage was loaded back up, the three men traveled
together in the van to a clothing store, where they went inside and stayed for about ten to fifteen
minutes.  From the clothing store, they traveled together in the van back to the car wash, where they
parked in one of the stalls and sat together in the van with the engine running for about 20 to 25
minutes.  Neilon then saw the van pull out of the stall closer to the street, where appellant and the
others sat in the van for another 20 to 25 minutes.
	Neilon then saw a green Toyota Camry pull up in front of the van in the street in the right-hand lane and stop.  The Toyota began to drive away with the van following it.  Neilon described the
Toyota and the van as "bumper locking, meaning less than a car length between the two of them." 
The Toyota and the van eventually parked in a residential neighborhood with the Toyota parked in
front of the van.  Neilon observed appellant get out of the van, walk to the back, open the hatch, and
reach into the van with both arms to retrieve something while the driver of the Toyota and the driver
of the van (Gordon) walked together toward the back of the van where appellant was. (4)
	Neilon lost sight of the van at this time.  About two to four minutes later, Neilon
reestablished surveillance of the van at which time he noticed that the van was parked on the other
side of the street and the Toyota was gone.  About 15 to 20 minutes later, the Toyota reappeared and
Neilon observed the Toyota and the van being driven to another location in the neighborhood very
close to where they had been before and park.  The driver of the Toyota got out, walked to the
driver's side window of the van, and passed a box through the driver's side window to Gordon. 
Gordon and the Toyota driver shook hands and the van left.
	Q. [STATE]: Okay.  What do you see happen next?

	A. [NEILON]: At that point in time, I slowed down and advised them once the
surveillance team where I saw the vehicle turn and what direction as I'm coming
through once again the brakes, the trees and where that house used to be [sic].  I can
observe the male and [sic] the Toyota exiting carrying a box of some type with both
hands.  As I get down here to the intersection, I see him pass the box into the window
of the van in to the driver, Mr. Gordon and him shake hands; and he turns and begins
to walk off.  At that point in time, I am too far down the street. (5)

	A marked patrol unit began to follow the van and soon stopped it for a traffic violation. 
Gordon was driving, appellant was in the front passenger seat, and Ayala-Garcia was in the back seat
behind appellant.  Behind the driver's seat, the police found a shoe box with a blanket on top of it. 
The shoe box contained the three kilograms of cocaine. (6)  Appellant was the only person in the van
with a large amount of cash ($637) on his person.  The police also seized from the driver's-side sun
visor of the van what purported to be an invitation to "Wright's and Smith Annual Family Reunion
in Texas."  This invitation, however, contained no time, date or location for this family reunion.  The
police also seized from the dashboard of the van a Bible with a name embossed on it that did not
match anyone in the van.  A narcotics investigator (Williams) characterized the family-reunion
invitation and the Bible as the types of props that narcotics traffickers commonly use in an attempt
to disguise their activities.  Neilon testified, based on his training and experience in investigating
narcotics cases, that appellant and the others behaved throughout the day like narcotic traffickers. (7)
	The defense suggested that appellant was merely an innocent bystander to the narcotics
transaction between Gordon (the driver of the van) and the driver of the Toyota.  Kelly testified,
however, that narcotics traffickers do not usually bring innocent-bystander witnesses to "large scale
narcotics transactions."
	Q. [STATE]: Let me ask you this question: And is it common or uncommon in large
scale narcotics transactions for drug purchase, or drug dealers to include other
witnesses that are not involved in the deal?

	A. [KELLY]: No, not that I have seen.

	Q. And why is that?

	A. It's-if they wanted to exclude them, in my opinion, they want to exclude a person
from their transaction, they are going to remove themselves.  They don't want them
to know what's going on.  That way they can't say oh, well, I didn't know what was
going on.  When standing right beside you and you're talking about the deal, you
can't say hey, I didn't know what was going on.  If he is around the corner, around
the bend or whatever and comes back and then something happens, then you can say
well, I didn't know what was going on.  But in this particular case-

	Q. No.  I am just talking in general.

	A. Okay.

	Q. Is it common whether or not you invite witnesses?

	A. No.
* * *
	Q. Is it common or uncommon for the person committing the crime to create other
witnesses to the crime or involve other witnesses?

	A. Is it common for him to involve other witnesses, no.
 
	During its closing jury arguments, the defense claimed that the State did not prove beyond
a reasonable doubt that appellant "either put [the cocaine] in his car or was aware of it" or that he
"aided, assisted and encouraged" any of the others to commit the offense. (8)  The State claimed that
this defied common sense.
	[STATE]: Ladies and gentlemen, I anticipate the defense in this case will be one that
the defendant was merely present at the scene, that he didn't assist in this transaction. 
But I am going to ask you to look at the evidence and ask not to look at each one of
these facts and ask you to look at the totality and see how it all fits together.
* * *
	I want to talk to you briefly about what beyond a reasonable doubt is.  Beyond a
reasonable doubt is you use your common sense in applying the facts in the case,
okay.  It's not looking at each individual fact in a vacuum.  It's looking at everything
together.  And when you look at everything together, you've got three men coming
in and [sic] rented car from a foreign town, spending all of their time together, doing
every activity the night before together, doing every activity the next day together in
close proximity.  But accidentally, when it comes to an illegal transaction, suddenly
when it comes to drugs, James Blackman has blinders on.
* * *
	Let's step back, be objective, play common sense.  I told y'all in voir dire about
common sense.  That was the key to this whole case.   And let's think about when
looking at the evidence, let's think about hypotheticals that were posed and juries
with the glasses.  Did the person have knowledge of it?  Did they have possession? 
Without knowledge, you can't possess it.  Okay.  Fair enough.

	Let's start from the back.  Let's start from the traffic stop, okay.  We have three
individuals stopped in a van.  We have approximately $300,000 worth of cocaine in
the van.  You remember what I asked y'all in applying common sense?  Do crooks
invite other witnesses to crimes?  Does that make sense? Absolutely not.
 
	The court of appeals's majority opinion decided that "the evidence presented by the State
linked only Gordon [the driver] to the box containing the cocaine" (9) and that the State's case against
appellant "rests entirely on appellant's presence in the van."  See Blackman, slip op. at 19, 24.  While
acknowledging that appellant's "presence in a van with a shoe box containing three kilograms of
cocaine may be highly suspicious," the court of appeals decided that the "State presented no evidence
that appellant voluntarily engaged in conduct that he possessed cocaine found in the shoe box on the
floorboard behind the driver's seat in the van" and that "[e]ven when viewed together in the light
most favorable to the verdict, the factors relied upon by the State do not create the logical force
necessary to allow a rational juror to find, beyond a reasonable doubt, that appellant exercised
knowingly actual care, custody, control, or management over the cocaine."  See Blackman, slip op.
at 26-27 (internal quotes omitted).  The court of appeals further decided that:
	Nor is there any evidence that appellant in any way aided or assisted Gordon in
obtaining the box containing the cocaine or in exercising control over the box. 
Again, it is well-settled law that mere presence, even with knowledge of an offense,
does not make one a principal or a party to the offense.  Considering the evidence of
what appellant did before, during, and after the cocaine was handed to Gordon, even
assuming that appellant knew that the shoe box contained cocaine, there is no
evidence that appellant was a participant in the transaction.  Here, the State proved
that appellant rode as a passenger in a rented van from Florida to Texas; stayed the
night in a motel and rode to a car wash and a clothing store with Gordon and Ayala-Garcia; waited at the car wash in the van with the others for forty to fifty minutes
after it had already been washed; rode with the others in the van to a residential
neighborhood; talked on his cell phone; walked towards the back of the van at the
same time as Gordon and the driver of the Toyota were walking by the side of the
van; and sat in the van when the driver of the Toyota handed Gordon the shoe box
containing cocaine.  Appellant's behavior was essentially passive, not active.  The
State presented no evidence that appellant voluntarily engaged in conduct
demonstrating that he, with the intent to promote or assist Gordon in the commission
of the offense of possession of cocaine, did anything to solicit, encourage, direct, aid
or attempt to aid Gordon in committing the offense.  Viewing the evidence in the
light most favorable to the verdict, there is no evidence that appellant was a party to
Gordon's possession of the cocaine.

See Blackman, slip op. at 28-29 (citation to authorities omitted).
 
	To prove the unlawful-possession-of-a-controlled-substance element of the charged offense
in this case, the State was required to prove that: 1) appellant exercised control, management, or care
over the three kilograms of cocaine; and 2) appellant knew that this was cocaine.  See Poindexter
v. State, 153 S.W.3d 402, 405 (Tex.Cr.App. 2005).  Moreover, since appellant was not in exclusive
possession of the van, the State was also required to prove beyond a reasonable doubt that
appellant's connection to the three kilograms of cocaine "was more than just fortuitous."  See
Poindexter, 153 S.W.3d at 406 (internal quotes omitted).  This is the "affirmative links" rule, which
we described in Poindexter:
	The "affirmative links rule" is designed to protect the innocent bystander from
conviction based solely upon his fortuitous proximity to someone else's drugs.  This
rule simply restates the common-sense notion that a person-such as a father, son,
spouse, roommate, or friend-may jointly possess property like a house but not
necessarily jointly possess the contraband found in that house.  Thus, we have
formulated the rule that "[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 unless there are additional independent
facts and circumstances which affirmatively link the accused to the contraband."
 
See id. (footnotes and citations to authority omitted).

	In determining whether the evidence is legally sufficient to support a conviction, a reviewing
court should not "ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt."  See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal quotes omitted
and emphasis in original).  Instead, the reviewing court must view all of the evidence in the light
most favorable to the verdict and determine whether "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."  See id. (emphasis in original); Hooper
v. State, 214 S.W.3d 9, 13 (Tex.Cr.App. 2007).  This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts."  See Jackson, 443 U.S. at 319;
Gold v. State, 736 S.W.2d 685, 692 (Tex.Cr.App. 1987) (Teague, J., dissenting) ("For [an
intermediate court] to conclude . . . that a jury verdict is supported by sufficient evidence, the court
must determine whether there is any valid line of reasoning and permissible inferences which could
lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial . . .
and as a matter of law satisfy the proof and burden requirement for every element of the crime
charged.") (internal quotes omitted).  "Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction."  See Hooper, 214 S.W.3d at 13.  The prosecution has no
affirmative duty to "rule out every hypothesis except that of guilt."  See Wright v. West, 505 U.S.
277, 296 (1992) (internal quotes omitted); Jackson, 443 U.S. at 326.
	We believe that the court of appeals misapplied the Jackson v. Virginia standard by asking
itself whether it believed that the evidence is sufficient to support appellant's guilt instead of asking
whether a rational trier of fact could have found appellant guilty beyond a reasonable doubt. (10)  And
we think it clear that, under a proper application of the Jackson v. Virginia standard, a rational trier
of fact could have found appellant guilty beyond a reasonable doubt.  A jury could reasonably find 
that appellant and the other two men traveled hundreds of miles together for the common purpose
of purchasing three kilograms of cocaine.  Their behavior during the time that they were under
surveillance by the police, during which they did practically everything together, was consistent with
this purpose.  A jury could reasonably find that Gordon would not bring two innocent-bystander
witnesses hundreds of miles to a large-scale narcotics transaction.  A jury could also reasonably rely
on the opinion of an experienced narcotics investigator that appellant and the other two men acted
like narcotics traffickers.  These "independent facts and circumstances" affirmatively link appellant
to the contraband.  See Poindexter, 153 S.W.3d at 406.  A jury could reasonably find beyond a
reasonable doubt that appellant's connection to the three kilograms of cocaine was much more than
just a fortuitous accident.  See id.

	The judgment of the court of appeals is reversed, and the case is remanded there for further
proceedings not inconsistent with this opinion.

								Hervey, J.
Delivered: April 13, 2011
Publish
1. 	The ground upon which we granted discretionary review states:

	Is the link evidence sufficient to establish that appellant exercised care, custody,
control, or management over the cocaine, and had knowledge that the substance was
contraband when the evidence shows that appellant arrived in Houston from Florida
with two other men and exhibited a comfortable familiarity with the men, was
present when a transaction for three kilograms of cocaine took place, and experts
testified that appellant's behavior was consistent with a large-scale narcotics
operation?
2. 	The record is silent on why the narcotics investigators were conducting surveillance of that
motel at that particular time.
3. 	Although one could reasonably infer from the evidence that the three men checked into the
motel for the night, the record is not entirely clear on whether they shared a room or whether they
each rented a separate room.  One of the narcotics investigators testified that "the hotel room" was
not in appellant's name.

	Q. What did you do?

	A. We contacted the hotel manager and found out who checked in that night.

	Q. Okay.  Was the hotel room in Mr. Blackman's name?

	A. No, sir.
4. 	On cross-examination, the defense sought to impeach Neilon with a report prepared by
another narcotics investigator (Williams).  This report did not state that Neilon "saw [appellant]
attempt to retrieve something" from the back of the van.  It stated that Neilon "simply saw
[appellant] standing in the back rear end of the van."  Neilon continued to maintain on cross-examination that he saw appellant "retrieving something" from the back of the van.  In its response
to appellant's motion for directed verdict, the State suggested that appellant was retrieving the money
to purchase the cocaine, "Then the defendant well, he first goes to the back to as the individual in
the Toyota, goes to the back of the car and you see him reaching for something.  There is no money
found in the van ultimately.  And obviously, that cocaine cost a lot of money."  An experienced
narcotics investigator (Kelly) testified that, in a typical narcotics transaction, "the person who is
selling the cocaine [will] want to see the money first."
5. 	Neilon later testified that he did not see who in the van received the package through the
driver's-side window.

	Q. [DEFENSE]: Okay.  Well, let me clear it up.  What did you see the Toyota driver
do?

	A. [NEILON]: As they parked that second, the third time?

	Q. Yes, sir, with the package.

	A. Okay.  He exited his vehicle, walked back to the van and passed it through the
driver's side window of the van.

	Q. When you said through it, does that mean he passed it to the driver?

	A. I did not see who received it in the van.  He stuck it through the window, the open
window of the van.
6. 	Neilon testified that the package he saw the Toyota driver pass through the driver's-side
window of the van was approximately the size of the shoe box.
7. 	Neilon testified:

	Q. [STATE]: How would you describe their behavior based on your training and
experience throughout the day?

	A. [NEILON]: It was consistent with the many of the other surveillance we had done
involving narcotic transactions.
8. 	The application paragraph in the jury charge authorized appellant's conviction either as a
principal or as a party.

	Now, if you find from the evidence beyond a reasonable doubt that on or about the
15th day of June, 2007, in Harris County, Texas, the defendant, James Blackman, did
then and there unlawfully, knowingly possess with intent to deliver a controlled
substance, namely, cocaine, weighing at least 400 grams by aggregate weight,
including any adulterants or dilutants; or if you find from the evidence beyond a
reasonable doubt that on or about the 15th day of June, 2007, in Harris County, Texas,
James Gordon and/or Mauro Ayala-Garcia, did then and there unlawfully, knowingly
possess with intent to deliver a controlled substance, namely, cocaine, weighing at
least 400 grams by aggregate weight, including any adulterants or dilutants, and that
the defendant, James Blackman, with the intent to promote or assist the commission
of the offense, if any, solicited, encouraged, directed, aided or attempted to aid James 
Gordon and/or Mauro Ayala-Garcia, to commit the offense, if he did, then you will
find the defendant guilty as charged in the indictment.
9. 	Thus, it would appear that the court of appeals decided that only Gordon was guilty of
possessing the cocaine.
10. 	It appears that the court of appeals applied a thirteenth-juror, evidentiary-weight standard,
which was never the law in Texas even before this Court's decision in Brooks.  See Brooks v. State,
323 S.W.3d 893, 898-902 (Tex.Cr.App. 2010) (discussing the indistinguishable "legal-sufficiency"
and "factual-sufficiency" standards, which are very different from an "evidentiary-weight" standard
that permits a reviewing court to sit as a thirteenth juror and to disagree with a jury's resolution of
conflicting evidence and with a jury's weighing of the evidence).
