                                                                                PD-0730-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 6/29/2015 4:20:55 PM
                                                                 Accepted 7/1/2015 1:20:34 PM
                                                                                ABEL ACOSTA
                                No. PD-0730-15                                          CLERK

                    TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


DALLAS CARL TATE,                                                   Appellant

v.

THE STATE OF TEXAS,                                                  Appellee


                         Appeal from Montague County


                                   * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *


                               LISA C. McMINN
                           State Prosecuting Attorney
                             Bar I.D. No. 13803300

                             JOHN R. MESSINGER
                       Assistant State Prosecuting Attorney
                              Bar I.D. No. 24053705

                                 P.O. Box 13046
                              Austin, Texas 78711
                           information@spa.texas.gov
                           512/463-1660 (Telephone)
                               512/463-5724 (Fax)


     July 1, 2015
    NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant, Dallas
Carl Tate.

*The case was tried before the Honorable Jack A. McGaughey, 97th Judicial District
Court, Montague County, Texas.

*Counsel for Appellant at trial was Jeannette Richmond, Richmond Law Office, 900
8th Street, Suite 115, Wichita Falls, Texas 76301.

*Counsel for Appellant on appeal was Lynn Switzer, P.O. Box 2040, 406 N. Grand
Ave., Suite 108, Gainesville, Texas 76241.

*Counsel for the State at trial was Paige Williams, District Attorney, and Casey Hall,
Assistant District Attorney, 97th Judicial District, P.O. Box 55, Montague, Texas
76251.

*Counsel for the State on appeal was Zachary Renfro, Special Prosecutor, 304 Clay
St., Nocona, Texas 76255.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                           i
                                     TABLE OF CONTENTS

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

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

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

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

   Did the court of appeals ignore multiple rules of sufficiency review and
   substitute its judgment for the jury’s when it held there was insufficient
   evidence connecting appellant to the contraband found in plain view in the
   center console of a car that he owned and was driving?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX (Opinion of the Court of Appeals, Dissenting Opinion)




                                                      ii
                                     INDEX OF AUTHORITIES

Cases
Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . 8

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 7

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . 2, 4, 7, 8

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . 5

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . 7

Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 7

Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . 7

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

Tate v. State, 02-14-00179-CR, __S.W.3d__, 2015 Tex. App. LEXIS 4941
      (Tex. App.–Fort Worth May 14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . passim

Statutes and Rules
TEX. CODE CRIM. PROC. art. 38.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. APP. P. 66.3(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                          iii
                                    No. PD-0730-15

                      TO THE COURT OF CRIMINAL APPEALS

                             OF THE STATE OF TEXAS

DALLAS CARL TATE,                                                           Appellant

v.

THE STATE OF TEXAS,                                                          Appellee


                                       * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW

                                       * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure.

                    STATEMENT REGARDING ORAL ARGUMENT

         The State does not request oral argument.

                            STATEMENT OF THE CASE

         Appellant was convicted of possession of a controlled substance and sentenced

to two years in state jail.1 The court of appeals held that the evidence was legally



     1
         4 RR 16.

                                            1
insufficient to connect appellant to the methamphetamine found in his vehicle.

                    STATEMENT OF PROCEDURAL HISTORY

      On May 14, 2015, the court of appeals reversed appellant’s conviction and

rendered a judgment of acquittal in a published opinion.2 Justice Walker wrote a

dissenting opinion. No motion for rehearing was filed. After this Court granted an

extension, the State’s petition is due on June 29, 2015.

                             GROUND FOR REVIEW

  Did the court of appeals ignore multiple rules of sufficiency review and
  substitute its judgment for the jury’s when it held there was insufficient
  evidence connecting appellant to the contraband found in plain view in the
  center console of a car that he owned and was driving?

                       ARGUMENT AND AUTHORITIES

      The so-called “affirmative links” rule protects an innocent bystander from

conviction for possession merely because of his fortuitous proximity to someone

else’s contraband.3 However, presence or proximity, when combined with other

evidence, may well satisfy the State’s burden of proof.4 Shortly after appellant was

removed from his vehicle, an officer discovered a syringe of methamphetamine in

plain view under the air conditioning controls within reach of the driver’s seat. Was



  2
      Tate v. State, 02-14-00179-CR, __S.W.3d__, 2015 Tex. App. LEXIS 4941 (Tex. App.–Fort
Worth May 14, 2015).
  3
      Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006).
  4
      Id. at 162.

                                            2
appellant’s proximity to where the syringe was found merely fortuitous?

Facts

        Appellant was driving his vehicle when he was stopped by Officer Beckham

for outstanding warrants.5 There was one passenger in the front and one in the back.6

The passengers remained inside for roughly five minutes after appellant was

removed.7 From where he was standing with appellant, Beckham could see the front

passenger moving, but he did not see her reach over towards the area of the air-

conditioning controls.8 He removed the passengers after requesting a unit to transport

appellant to jail.9 He then impounded the vehicle and conducted an inventory

pursuant to a written policy.10 Beckham found a syringe containing .24 grams of

methamphetamine in an open compartment underneath the radio and climate

controls.11 It was in plain view and directly to the right of the driver’s seat.12




  5
        3 RR 12-16, 60.
  6
        3 RR 13.
  7
        3 RR 24-25, 28.
  8
        3 RR 27-28, 30-31.
  9
        3 RR 25.
  10
        3 RR 15.
  11
        3 RR 18, 48, 64.
  12
        3 RR 18, 28, 60, 63.

                                           3
Opinion below

        The court of appeals reversed the jury’s verdict of guilt. It properly stated the

deferential standard of review for sufficiency of the evidence.13 It cited heavily from

Evans v. State, the style case for using circumstantial evidence to link a defendant to

a controlled substance.14 It compiled a non-exhaustive list of 16 potential links.15

Importantly, it reiterated that the number of links is not as important as their “logical

force” and the absence of various links is not evidence of innocence to be weighed

against the links presented.16 Unfortunately, it did not follow these rules:

   The dissent argues that the syringe’s location “in plain view in an open cubby
   in the car’s console” that was “conveniently accessible to Tate” is sufficient in
   addition to his vehicle ownership claim to link the syringe to him. . . . Missing
   from the dissent’s logical equation is any evidence that at the time Tate was
   removed from the car, the syringe was located in the compartment where it was
   later found. . . . [A]t least five minutes had elapsed before the women were
   removed from the vehicle, during which time they were moving around so much
   that [the officer] admitted he could not keep a proper eye on them and could not
   tell what they were doing.17

It concluded:

   [T]here can be no logical inferences from a complete gap in proof—either direct


   13
       Slip op. at 4-5 (citing, inter alia, Jackson v. Virginia, 443 U.S. 307 (1979), and TEX. CODE
CRIM. PROC. art. 38.04 (“The jury, in all cases, is the exclusive judge of the facts proved, and of the
weight to be given to the testimony . . . .”).
   14
        Slip op. at 5-7.
   15
        Slip op. at 6-7.
   16
        Slip op. at 6. See Evans, 202 S.W.3d at 162.
   17
        Slip op. at 8 (citations omitted).

                                                  4
   or circumstantial—as to whether the syringe was in that compartment at any
   point in time when Tate was also present in the vehicle. . . .
          On this record, the only link between Tate and the syringe at the time he
   was removed from the vehicle was that he was the driver and self-purported
   owner of the vehicle.18

Argument

        The court of appeals ignored basic rules of sufficiency review on its way to

acquitting appellant.

Alternative reasonable hypothesis

        The court of appeals is correct that, “absent from the record is any evidence

that the syringe was not in the possession of [the passengers] when Tate left the

vehicle . . . .”19 But however reasonable this innocent explanation may be, focusing

on the existence of an “outstanding reasonable hypothesis inconsistent with the guilt

of the accused” effectively repudiates the jury’s role as the exclusive judge of the

facts and places the reviewing court in the posture of a “thirteenth juror.”20

Joint possession

        Moreover, a hypothesis based on exclusive possession by either appellant or

a passenger ignores the rule that possession need not be exclusive. “The mere fact

that a person other than the accused might have joint possession of the premises does


  18
         Slip op. at 10. Appellant testified that the vehicle, “wasn’t in my name, but it did belong to
me. . . . I hadn’t -- hadn’t had any paperwork transferred yet, but it did belong to me.” 3 RR 60.
   19
        Slip op. at 8 n.5
   20
        Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991).

                                                  5
not require the State to prove that the defendant had sole possession of the

contraband, only that there are affirmative links between the defendant and the drugs

such that he, too, knew of the drugs and constructively possessed them.”21

Ignoring or re-weighing evidence

       And, in fact, appellant did not jointly possess the vehicle in which the syringe

was found. Contrary to the court of appeals’s view, appellant is not the “self-

purported owner.” When viewed in the light most favorable to the verdict, appellant

simply is the owner.22 If a qualifier is necessary, he is the “admitted owner.”

       The court of appeals also failed to acknowledge the presence of links from its

list or downplayed their value. Six of the court’s links are present: “the contraband

was (1) in plain view; (2) conveniently accessible to . . . the accused; (3) in a place

owned, rented, possessed, or controlled by the accused; (4) in a car driven by the

accused; (7) drug paraphernalia was present; . . . [and] (13) the accused was present

when the search was conducted.”23 The court of appeals held that plain view and

convenient accessibility mean nothing without direct evidence that the syringe was

there when appellant in the vehicle.24


  21
       Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005).
  22
      Thus it is assumed the jury disregarded one passenger’s statement to Beckham that she
owned the vehicle. 3 RR 15.
  23
       See slip op. at 6-7.
  24
       Slip op. at 8.

                                              6
Absent and circumstantial evidence

        In the court’s view, what was missing were fingerprints or evidence that

Beckham saw the syringe when appellant was still in the vehicle.25 This Court has

repeatedly warned against focusing on missing evidence.26 Moreover, circumstantial

evidence is as probative as direct evidence and can be sufficient on its own to

establish guilt.27 It is not necessary that every fact, like fingerprints, point directly

and independently to the defendant’s guilt.28 And, far from being a prerequisite to

conviction, a defendant’s presence vel non at the time of the search is merely one

circumstance to be considered.29

Conclusion

        Appellant testified that the syringe belonged to one of the passengers and was

not in the console when he was in the car.30 The court of appeals acquitted appellant

based on that possibility. However, “The jury presumably went through exactly the


   25
        Slip op. at 7 n.3, 8 n.4.
  26
      See, e.g., Murray v. State, 457 S.W.3d 446, 449 (Tex. Crim. App. 2015); Merritt v. State, 368
S.W.3d 516, 526 (Tex. Crim. App. 2012); Evans, 202 S.W.3d at 164.
   27
        Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
   28
        Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
   29
       Evans, 202 S.W.3d at 162 n.12; see also slip op. at 7. It might be inferred that the court of
appeals defines “presence” as a suspect’s immediate proximity to the contraband at the time it is
discovered, as it is undisputed that appellant was in the vehicle minutes before the syringe was
found.
   30
        3 RR 63-65.

                                                 7
same weighing of evidence, credibility assessments, and alternative-explanation

exercises and came to the opposite conclusion, i.e., appellant was connected to the

drugs. Under federal and Texas law, juries trump both trial and appellate judges on

weight-of-evidence determinations.”31

        From beginning to end, the court’s analysis is a vast departure from the usual

course of sufficiency review.32 The dissent is correct: this is a straightforward

possession case.33 Had this search taken place in a house while the owner was gone,

appellant’s conviction would have been affirmed.34 The result should be no different

here.




   31
        Evans, 202 S.W.3d at 164.
   32
        TEX. R. APP. P. 66.3(f).
   33
        Dissent at 1 (Walker, J., dissenting).
   34
       See, e.g., Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1974) (op. on rhr’g), in
which the lessee, Dean, was absent when the house was searched but Abercrombie and another were
present. Id. at 586. This Court held, “While Dean was not present at the time of the search, the
house was under his control, marihuana was literally everywhere, and he or someone in the house
had accepted the marihuana brought by [a neighbor] after Dean’s conversation with him. We
conclude the evidence was sufficient to support the verdict of guilty as to both Dean and
Abercrombie.” Id. at 586-87 (emphasis added).

                                                 8
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and reverse the decision of the Court of

Appeals.

                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No. 13803300

                                          /s/ John R. Messinger
                                        JOHN R. MESSINGER
                                        Assistant State Prosecuting Attorney

                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        John.Messinger@SPA.Texas.gov
                                        512/463-1660 (Telephone)
                                        512/463-5724 (Fax)




                                         9
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 2,451 words.

                                         /s/ John R. Messinger
                                       JOHN R. MESSINGER
                                       Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 29th day of June, 2015, the State’s

Petition for Discretionary Review was served electronically through the electronic

filing manager or e-mail on the parties below.

Zachary Renfro
Special Prosecutor
304 Clay St.
Nocona, Texas 76255
renfrolawoffice@gmail.com

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

Lynn Switzer
P.O. Box 2040
406 N. Grand Ave., Suite 108
Gainesville, Texas 76241
lynn.switzer@thesolawfirm.com

                                         /s/ John R. Messinger
                                       JOHN R. MESSINGER
                                       Assistant State Prosecuting Attorney


                                        10
APPENDIX
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00179-CR


DALLAS CARL TATE                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------


        FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                  TRIAL COURT NO. 2013-0163M-CR

                                    ----------

                                   OPINION

                                    ----------

                                I. Introduction

      In one issue, Appellant Dallas Carl Tate challenges the sufficiency of the

evidence used to support his conviction for possession of a controlled substance.

Specifically, Tate argues that the evidence does not prove that he possessed the

syringe containing the controlled substance found near the front-seat air-
conditioning unit of his car during an inventory search. We will reverse the trial

court’s judgment and render a judgment of acquittal.

                                            II. Facts

       Sergeant Rick Beckham, a detective with the Bowie Police Department,

testified that around 2:00 p.m. on December 3, 2012, he pulled Tate over

because he believed him to have outstanding warrants. Accompanying Tate

were two female passengers—Bonita Proctor and Sherita Yvonne Hale—and a

dog.

       Tate exited the vehicle upon the officer’s request while the women

remained in the car. Sergeant Beckham testified that he took Tate to the rear of

the vehicle, informed him about the warrants, confirmed the warrants, secured

the property Tate had on his person, handcuffed him, contacted dispatch to

request transportation, and then placed Tate into custody. After that, Sergeant

Beckman testified that he and Tate waited near the rear of the vehicle for a patrol

unit to arrive to transport Tate to jail.

       From where he was standing during this process, Sergeant Beckham said

that he had a clear view of Proctor, the front-seat passenger, and he did not see

her reach toward the air conditioning unit or in that general direction. However,

he also testified that, because Proctor was moving around a lot and he could not

tell exactly what she was doing, he asked both women to step out of the vehicle.

According to the officer, the women exited the vehicle approximately five minutes

after he had removed Tate from the vehicle.


                                               2
      When Bowie Police Officer Mark Robertson and State Trooper Rachel

Russell arrived to assist Sergeant Beckham, Sergeant Beckham directed Officer

Robertson to transport Tate to jail. He then reported to Trooper Russell that the

female passengers had been moving around a lot in the vehicle and he

requested that she search them.1        Trooper Russell did so, and found no

contraband.

      Although the vehicle was not registered in his name and he was unable to

provide any paperwork demonstrating his ownership, Tate claimed that he owned

the vehicle.   One of the female passengers also claimed ownership of the

vehicle; however, she, too, could provide no proof. Therefore, pursuant to the

Bowie Police Department’s written impoundment policy, Sergeant Beckham

impounded the vehicle. The vehicle was later inventoried at the scene, at which

time Sergeant Beckham discovered a syringe filled with a brown liquid

substance—later identified by an expert as 0.24 grams of methamphetamine—

located in an open compartment underneath the air conditioner/heater control

panel. Sergeant Beckham described the compartment as “directly to the right” of

the driver’s seat. He further testified that while both Tate and Proctor could have




      1
       Sergeant Beckham testified that by this time he had already requested
and obtained permission to search the women’s purses and found no
contraband.


                                        3
reached out and touched the compartment, he did not believe Hale, the back-

seat passenger, could.2

      At the conclusion of the trial, the jury found Tate guilty of possession of a

controlled substance, namely, methamphetamine, in an amount of less than one

gram. The trial court sentenced Tate to two years’ confinement.

                             III. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we 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 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). 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

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

      2
     Tate disagreed, testifying that Hale could also have accessed the
compartment if she had leaned forward between the two seats.


                                         4
Crim. App. 2010). Instead, we 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. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

                                  IV. Analysis

      A person commits the offense of possession of a controlled substance if he

knowingly or intentionally possesses a controlled substance listed in Penalty

Group 1, which includes methamphetamine. Tex. Health & Safety Code Ann.

§§ 481.102(6), .115(a) (West 2010). 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. Id. § 481.002(38) (West 2010 & Supp. 2014); Evans v. State, 202

S.W.3d 158, 161 (Tex. Crim. App. 2006). The State may prove the elements of

possession through direct or circumstantial evidence; however, the evidence

must establish that the accused’s connection with the substance was more than

fortuitous. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

      If the contraband is not found on the accused’s person, independent facts

and circumstances may “link” the accused to the contraband such that it may be

justifiably concluded that the accused knowingly possessed the contraband.


                                        5
Evans, 202 S.W.3d at 161–62; Roberson v. State, 80 S.W.3d 730, 735 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d). Links are established by the totality

of the circumstances, and no set formula necessitates a finding of a link sufficient

to support an inference of knowing possession. Wright v. State, 401 S.W.3d 813,

819 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The number of linking

factors present is not as important as the “logical force” they create to prove that

an offense was committed.       Roberson, 80 S.W.3d at 735.        The absence of

various links does not constitute evidence of innocence to be weighed against

the links present. Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App.

1976); James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d).

      Texas courts have identified a non-exhaustive list of links that may, alone

or in combination with others, establish a person’s knowing possession of

contraband, including: whether the contraband was (1) in plain view; (2)

conveniently accessible to or found on the same side of the car as the accused;

(3) in a place owned, rented, possessed, or controlled by the accused; (4) in a

car driven by the accused; or (5) found in an enclosed space; whether (6) the

odor of narcotics was present; (7) drug paraphernalia was present, in view of, or

found on the accused; (8) the accused’s conduct indicated a consciousness of

guilt (e.g., furtive gestures, flight, conflicting statements); (9) the accused had a

special relationship to the drug; (10) the accused possessed other contraband or

narcotics when arrested; (11) the accused was under the influence of narcotics


                                         6
when arrested; (12) affirmative statements connected the accused to the drug;

(13) the accused was present when the search was conducted and whether

others were present at the time of the search; (14) the accused was found with a

large amount of cash; (15) the amount of contraband found was large enough to

indicate that the accused knew of its existence; and (16) the accused’s

relationship to other persons with access to where the drugs were found. Evans,

202 S.W.3d at 162, n.12; Roberson, 80 S.W.3d at 735, n.2; Villegas v. State, 871

S.W.2d 894, 897 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). These are

simply some factors that may circumstantially establish the sufficiency of the

evidence to prove a knowing “possession,” but they are not a litmus test. Evans,

202 S.W.3d at 162, n.12.       Each case must be examined on its own facts.

Roberson, 80 S.W.3d at 736.

      Because the syringe containing the methamphetamine was not found on

Tate’s person, linking factors must be present, sufficient to create a “logical force”

to prove that Tate committed the offense. See id. at 735. On the record of this

case, the only link between Tate and the syringe was that Tate 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 Proctor.3 This,

without more, is insufficient to support Tate’s conviction.         See id. at 736.

(“[A]ppellant’s status as the driver of the car is insufficient on its own to prove


      3
       The syringe was not fingerprinted.


                                          7
possession, but may help show legal sufficiency if combined with other

evidence.”)

      The dissent argues that the syringe’s location “in plain view in an open

cubby in the car’s console”4 that was “conveniently accessible to Tate” is

sufficient in addition to his vehicle ownership claim to link the syringe to him.

However, in order to constitute a link, the evidence must logically connect the

accused to the contraband such that it may be justifiably concluded that the

accused knowingly possessed it. Evans, 202 S.W.3d at 161–62; Roberson, 80

S.W.3d at 735. Missing from the dissent’s logical equation is any evidence that

at the time Tate was removed from the car, the syringe was located in the

compartment where it was later found. Although it was found in plain view after

Proctor and Hale exited the vehicle, looking at the evidence in the light most

favorable to the verdict, at least five minutes had elapsed before the women were

removed from the vehicle, during which time they were moving around so much

that Sergeant Beckham admitted he could not keep a proper eye on them and

could not tell what they were doing.5


      4
        There is no evidence that Sergeant Beckham saw the syringe from his
vantage point when he first approached the vehicle or after removing Tate to the
rear of the vehicle, all of which occurred during daylight hours.
      5
       Also absent from the record is any evidence that the syringe was not in
the possession of Proctor or Hale when Tate left the vehicle, which would have
supported a logical inference that the syringe was in the compartment prior to
Tate’s removal from the vehicle. Although Sergeant Beckham testified that he
searched their purses, there is no evidence indicating when he performed that
search, except that it occurred prior to Russell’s search, nor can the time be

                                        8
      The place where officers found the syringe was within reach of both Tate

and Proctor. Although found in plain view at the time of inventory, there is no

evidence that the syringe was in plain view or accessible to Tate at any time

when Tate was inside the vehicle.6

      The facts of this case bear a striking resemblance to the facts presented in

Roberson, in which the court held that evidence is not legally sufficient when the

State merely shows that a defendant was driving a vehicle containing narcotics.

80 S.W.3d at 736. In that case, Roberson was the driver of a vehicle containing

two other passengers and 24 grams of cocaine.           Id. at 741.    The police

discovered the drugs in the vehicle near where one of the passengers was

seated, and upon arrest, Roberson reportedly displayed a “consciousness of

guilt.” Id. Nothing else linked Roberson to the cocaine—he was not under the

influence at the time of arrest; there was no drug odor in the car; he was

cooperative and made no furtive gestures; the cocaine was not found until almost



inferred from other facts in the record, since Sergeant Beckham’s testimony on
that point was not presented in the context of a sequential or chronological
recitation of the events as they transpired. Without that context, or any testimony
as to when in the series of events the search of purses occurred, logic will not
permit an inference that because he searched their purses, he did so at any
particular point in the sequence.
      6
       And, contrary to what the dissent considers a reasonable inference, Tate’s
testimony with regard to what he probably would have done if he had known
about the syringe is purely speculative and does not constitute evidence to link
Tate to the syringe. See Hernandez v. State, 867 S.W.2d 900, 904 (Tex. App.—
Texarkana 1993, no pet.) (“Evidence affirmatively connecting the accused to the
contraband must amount to more than mere conjecture or speculation.”)


                                        9
twenty minutes had passed, during which time the two passengers remained in

the vehicle; and no statements were made at the scene regarding the cocaine.

Id. at 742. This evidence, the court held, even in the light most favorable to the

verdict, “d[id] not create the logical force necessary to allow a rational juror to

find, beyond a reasonable doubt, that [Roberson] had knowledge of the presence

of cocaine.” Id.

      Although we are required to resolve any conflicting inferences in favor of

the verdict, there can be no logical inferences from a complete gap in proof—

either direct or circumstantial—as to whether the syringe was in that

compartment at any point in time when Tate was also present in the vehicle.

There is no evidence in this record that the syringe was ever in plain view or

accessible to Tate.

      On this record, the only link between Tate and the syringe at the time he

was removed from the vehicle was that he was the driver and self-purported

owner of the vehicle.7 Therefore, a rational juror could not have determined



      7
       We reject the dissent’s contention that Tate’s act of having his driver’s
license and proof of insurance out and ready when Officer Beckham approached
the vehicle is another link to or any evidence of possession because this
behavior is equally consistent with being a conscientious and law-abiding driver.
Cf. Bland v. State, No. 01-13-00303-CR, 2014 WL 4855024, at *3 (Tex. App.—
Houston [1st Dist.] Sept. 30, 2014, no pet.) (mem. op., not designated for
publication) (stating that consciousness of guilt may be shown by flight,
excessive nervous behavior, or an unsettled demeanor); Wallace v. State, No.
02-10-00196-CR, 2011 WL 4415024, at *2 (Tex. App.—Fort Worth Sept. 22,
2011, no pet.) (mem. op., not designated for publication) (stating that one of the
links between appellant and the 6.36 grams of cocaine found in the driver’s side

                                        10
beyond a reasonable doubt from the evidence that Tate intentionally or knowingly

exercised care, custody, management, or control over the syringe such as to

constitute “possession” of the methamphetamine that was later found inside the

vehicle.8 Because we so hold, we sustain Tate’s sole point.

                                 IV. Conclusion

      Because the evidence is insufficient to support Tate’s guilt, we reverse the

trial court’s judgment and render a judgment of acquittal. See Tex. R. App. P.

43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19, 24–25, 98 S. Ct. 2151, 2154–

55 (1978); Burks v. United States, 437 U.S. 1, 16–18, 98 S. Ct. 2141, 2150–51

(1978); Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013).


                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

WALKER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: May 14, 2015



door pocket of his vehicle was his making furtive gestures when the officer asked
for his driver’s license and proof of insurance).
      8
        In conducting the sufficiency analysis, we do not focus “on [our] own view
of what was not proved,” as the dissent suggests. Rather, we hold that,
considering all of the evidence in this record, when viewed in the light most
favorable to the verdict, the evidence simply does not constitute a “logical force”
sufficient to prove possession by Tate.


                                          11
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00179-CR


DALLAS CARL TATE                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

        FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                  TRIAL COURT NO. 2013-0163M-CR

                                     ----------

                           DISSENTING OPINION

                                     ----------

      This is a straightforward possession case requiring a straightforward

sufficiency analysis under Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979), which the majority fails to perform. Because the majority’s analysis

focuses on the links not proven by the State instead of on the links that were

proven by the State; substitutes the majority’s own weight- and credibility-of-the-

evidence determinations for those of the jury; fails to view the evidence in the
light most favorable to the judgment; and disregards controlling, well-established

precedent from the Texas Court of Criminal Appeals concerning what evidence

will sufficiently link a defendant to contraband found in a vehicle, I am compelled

to dissent.

      The lynchpin of the majority’s reverse-and-acquit sufficiency analysis is the

absence       of   evidence   that   Officer   Beckham   observed   the   syringe   of

methamphetamine in the cubbyhole1 in the front console of the car when he

approached the driver’s-side door of the car after he had stopped Tate. From the

absence of this evidence, the majority extrapolates that the syringe of

methamphetamine must not have actually been located in the cubbyhole when

Tate was stopped and instead must have been placed there by one of the female

passengers2 during an approximately five-minute interval after Tate was asked to

step out of the car and before the women were asked to step out of the car. The

errors in this analysis by the majority are threefold.

      First, instead of analyzing the links that were proven by the State, the

majority focuses on its own view of what was not proven. This type of sufficiency

analysis in possession cases has been expressly disavowed by the Texas Court


      1
      Officer Beckham testified that he found the syringe in “the cubbyhole
underneath the air conditioner, heater controls in that vehicle.”
      2
        The two female passengers were friends of Tate’s. Bonita Proctor, the
front-seat passenger, was Tate’s former girlfriend; Sherita Yvonne Hale, the
back-seat passenger, was a friend of Proctor’s. The trio was on the way to
Proctor’s house at the time of the stop.


                                               2
of Criminal Appeals. Compare Evans v. State, 202 S.W.3d 158, 164 (Tex. Crim.

App. 2006) (explaining that court of appeals’s sufficiency analysis erroneously

discussed links that might have connected the defendant to the drugs but did not

exist in the case and disregarded the links that were proven by the State), with

Tate v. State, No. 02-14-00179-CR, slip op. at 8–9 (Tex. App.––Fort Worth May

14, 2015, no pet. h.) (conducting sufficiency analysis by discussing links that

might have connected Tate to the drugs but did not exist in the case and

disregarding the links that were proven by the State––“there is no evidence that

the syringe was in plain view or accessible to Tate”; “[a]lso absent from the

record is any evidence that the syringe was not in the possession of Proctor or

Hale”; “there is no evidence indicating when he [Officer Beckham] performed that

search [of the purses]”; “[t]here is no evidence that Sergeant Beckham saw the

syringe from his vantage point when he first approached the vehicle”; etc.); see

also Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (explaining

that in light of court of criminal appeals’s abandonment of “outstanding

reasonable hypothesis methodology” in 1991, defendant’s link to drugs he

allegedly possessed “need no longer be so strong that it excludes every other

outstanding reasonable hypothesis except the defendant’s guilt”).

      Second, although reciting the proper standard of review, the majority fails

to apply it; the majority fails to view the evidence in the light most favorable to the

jury’s verdict and instead substitutes its own weight and credibility determinations

of the evidence for that of the jury. See Isassi v. State, 330 S.W.3d 633, 638


                                          3
(Tex. Crim. App. 2010) (reversing court of appeals’s judgment of acquittal

because court of appeals’s sufficiency analysis did not view the evidence in the

light most favorable to the jury’s verdict or give deference to the jury’s weight-

and credibility-of-the-evidence determinations). For example, the majority fails to

mention that Tate testified that he had his driver’s license and proof of insurance

out and ready when Officer Beckham approached the driver’s-side window of the

car. Tate also testified that Officer Beckham’s first words to Tate were, “Step out

of the vehicle.”3      A reasonable inference exists that the syringe of

methamphetamine was in the cubbyhole at the time Officer Beckham stopped

Tate for outstanding warrants but that Officer Beckham did not notice it during

the extremely short time he stood near the driver’s-side window before he asked

Tate to get out of the car and escorted Tate to a position at the rear of the

vehicle. Also, the syringe of methamphetamine was admitted into evidence. The

jury was free to infer from viewing the syringe that it was small enough that it

could roll deep enough within the cubbyhole that it would not be visible to a

person standing at the driver’s-side window. Only Tate testified that it would be




      3
       On direct examination Tate testified:

            Q. And did the officer speak to you when he arrived at your
      vehicle?

           A. Yes. I think I already had my license and insurance ready.
      He walked up and immediately asked me to step out of the car.


                                        4
visible; the jury was free to not believe his testimony. See Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).

      Even more importantly, the jury rejected the very same view of the

evidence that the majority accepts. At trial, Tate put forward his theory that one

of the female passengers must have placed the syringe in the cubbyhole after he

had exited the vehicle. Tate testified that the syringe could not have been in the

cubbyhole when Officer Beckham stopped him because if it had been there, he

(Tate) would have gotten rid of it. Tate testified:

      Q. Okay. Now, Mr. Tate, when you were removed from the car,
      were you aware that there was a syringe in your car?

      A. No, ma’am.

      Q. If you had a syringe, what would your actions have been when
      you knew the police officer was pulling you over?

      A. If I had had one?

      Q. Yes, sir.

      A. I’m not sure. I probably would have thrown it out or, at least,
      squirted the contents out of it. I don’t know. I wouldn’t -- I would
      hate to answer that without being put in that position.

      Q. So what you’re saying is, you basically would not have left it in a
      center compartment open to plain view if you had had it?

      A. Absolutely not.

Tate testified that he had learned about the syringe of methamphetamine found

in his car after he was placed in jail. He said that he wondered to himself which

of the female passengers had placed it there.



                                          5
      On cross-examination, the prosecutor undermined Tate’s theory by

questioning why Tate––who admitted he had a prior conviction for possession––

would dispose of the syringe if he had known about it, but Tate’s two female

friends—whom Tate testified also had prior possession convictions––would not

have disposed of the syringe but would instead have set him up. Tate testified

on cross-examination:

      Q. And you said you were not aware of a syringe. You would have
      thrown it out or squirted its contents if you had been aware of it?

      A. Yes, ma’am.

      Q. You would have hidden it from police?

      A. Hidden the syringe?

      Q. Yes.

      A. I wouldn’t say hide it. I just didn’t want it -- wouldn’t have it --
      wouldn’t have had it on me.

      Q. So you would have planted it on someone else?

      A. Oh, no.

      Q. No? You would have gotten rid of the evidence so you wouldn’t
      --

      A. True.

      Q. -- have been charged; is that correct?

      A. Correct.

      Q. So what you’re claiming is, even though you would have thrown
      the syringe somewhere or squirted the contents out or put it
      somewhere where it couldn’t easily be seen, you’re saying that the
      other two women would have put it somewhere where it could have


                                        6
      easily been seen instead of doing the same thing [that you would
      have done]; is that right?

      Officer Beckham testified that after the stop, the women consented to a

search of their purses; he searched the purses and found no contraband. The

jury could have reasonably inferred that the women would not carry a syringe

with a needle on their person or in their pockets and that because the syringe

was not found in the women’s purses, it was in the cubbyhole all along. In short,

the majority’s analysis fails to apply the proper Jackson v. Virginia standard of

review; the majority’s analysis does not view the evidence in the light most

favorable to the jury’s verdict and does not defer to the jury’s weight- and

credibility-of-the-evidence determinations. See Evans, 202 S.W.3d at 164.4

      Third, the law is well-settled that links like the links that were proven by the

State in this case are sufficient to meet the State’s burden of establishing that

Tate exercised actual care, custody, control, or management over the syringe of

methamphetamine and knew that the syringe contained methamphetamine. See

Tex. Health & Safety Code Ann. § 481.002(38) (West Supp. 2014) (setting forth

      4
      The court of criminal appeals in Evans reversed the court of appeals’s
judgment of acquittal in a possession case because:

            The jury presumably went through exactly the same weighing
      of evidence, credibility assessments, and alternative-explanation
      exercises [as that set forth in the court of appeals’s opinion] and
      came to the opposite conclusion, i.e., appellant was connected to
      the drugs. . . . Under federal and Texas law, juries trump both trial
      and appellate judges on weight-of-evidence determinations.

202 S.W.3d at 164.


                                          7
definition of possession). Viewed in the light most favorable to the jury’s verdict,

the evidence establishes that the syringe of methamphetamine was found in

plain view in an open cubbyhole in the car’s console, was conveniently

accessible5 to Tate––even Tate testified that the cubbyhole was accessible to the

driver of the car, was found in a car that Tate claimed to own, and was found in a

car driven by Tate. See Evans, 202 S.W.3d at 162 n.12 (listing these possible

links); Roberson v. State, 80 S.W.3d 730, 735 n.2 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d) (same); Villegas v. State, 871 S.W.2d 894, 897 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d) (same).       Viewed in the light most

favorable to the jury’s verdict, the evidence also establishes that about five

minutes after Tate was asked to step out of the vehicle, the female passengers

were asked to step out of the vehicle; that before the female passengers were

asked to step out of the vehicle, their purses were searched and found to contain

no contraband; that the female passengers themselves were subsequently

searched by Trooper Rachel Russell when she arrived and that no contraband

was found; and that although the front-seat passenger was moving around a lot




      5
        The term “conveniently accessible” means that the contraband must be
within the close vicinity of the accused and easily accessible while in the vehicle
so as to suggest that the accused had knowledge of the contraband and
exercised control over it. Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d).


                                         8
in the car before she was asked to step out of the vehicle, 6 Officer Beckham did

not observe her reach forward toward the front console near the cubbyhole.

Thus, a reasonable inference exists that one of the female passengers did not

remove the syringe of methamphetamine from her purse or off of her person and

place it in the cubbyhole and that the syringe was in the cubbyhole all along.

      Tate himself provided testimony allowing the jury to reasonably infer that,

even if one of the women had possessed the syringe of methamphetamine, she

would have hidden it or ejected its contents, not placed it in plain view in the car.

The logical force of the combined evidence and reasonable inferences

therefrom––when viewed in its totality in the light most favorable to the verdict

and with deference to the jury’s weight- and credibility-of-the-evidence

determinations––is sufficient to enable a rational trier of fact to find beyond a

reasonable doubt that Tate exercised actual care, custody, control, or

management of the syringe of methamphetamine and that his relationship to it

was more than merely fortuitous.7        See Tex. Health & Safety Code Ann.


      6
        Proctor, the front-seat passenger, did not testify, so no direct explanation
exists in the record for her movement within the car; however, Officer Beckham
testified that there was a dog in the car with the trio.
      7
        I cannot agree with the majority’s assertion that the facts here bear a
striking resemblance to the facts in Roberson, 80 S.W.3d at 741–42. In
Roberson, the drugs were not found in an area of the car conveniently accessible
to the defendant-driver, like the syringe was conveniently accessible to Tate as
the driver of the car. Id. (explaining that a “full cookie” of crack cocaine was
found on the passenger side floorboard near the door and that a “half cookie” of
crack cocaine was found on the roadway a few inches from the car on the
passenger side). Additionally, in Roberson, evidence existed linking only the

                                         9
§ 481.002(38); see also, e.g., Evans, 202 S.W.3d at 163 (reversing acquittal

judgment and noting that evidence—sixteen grams of cocaine was located on

coffee table one foot directly in front of where defendant was sitting—constituted

“two extremely strong ‘presence’ and ‘proximity’ links”); Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. 1981) (holding evidence sufficient to support

driver’s possession conviction based on baggie of marijuana found in defendant’s

car in plain view on floor between driver’s seat and car door despite evidence

that defendant’s car was used by a business as a delivery car).8


front-seat passenger to the cocaine, not the defendant-driver; while here,
evidence exists linking only Tate to the syringe of methamphetamine, not the
front-seat passenger. See id. (explaining that the evidence linked the front-seat
passenger to the cocaine because the front-seat passenger appeared to be
under the influence of drugs, was sitting where the “full cookie” of cocaine was
found, and had exited the vehicle near where the “half cookie” of cocaine was
found, and the driver never went to the passenger side of the exterior of the
vehicle during the stop and appeared sober).
      8
        The legal analysis concerning the sufficiency of the evidence to establish
that a driver, driving a car he claims to own, exercised actual care, custody,
control, or management over contraband found in his car in a location that is
easily accessible to the driver coupled with other circumstantial evidence is so
well-established that many cases on this issue are not published. See, e.g., Otto
v. State, No. 08-04-00249-CR, 2005 WL 1940276, at *5 (Tex. App.—El Paso
Aug. 11, 2005, no pet.) (not designated for publication) (holding evidence legally
sufficient to support driver’s possession conviction based on evidence that he
told officer he was the owner of the vehicle and that inventory search revealed
contraband underneath plastic molding of gear shift console—a location in close
proximity to and easily accessible by driver; court focused on the degree to which
this evidence linked driver to contraband and declined to focus on the number of
links or the lack of additional links, such as the absence of furtive gestures,
incriminating statements, drug paraphernalia, fingerprints, weapons, or drugs
found on driver’s person or that passenger had access to vehicle); McClanahan
v. State, No. 05-03-00115-CR, 2003 WL 22663801, at *2 (Tex. App.––Dallas
Nov. 12, 2003, pet. ref’d) (not designated for publication) (holding evidence

                                       10
       For all of these reasons, I respectfully dissent. I would affirm the judgment

of the trial court.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PUBLISH

DELIVERED: May 14, 2015




sufficient to support driver’s possession conviction based on baggie of cocaine
found in defendant’s car on driver’s seat although two passengers were in the
car); Fowler v. State, No. 08-01-00409-CR, 2002 WL 1732598, at *3 (Tex. App.–
–El Paso July 25, 2002, no pet.) (not designated for publication) (holding
evidence sufficient to support driver’s possession conviction based on marihuana
found in cupholder in center console of defendant’s car although front-seat
passenger was in the car); see also Parra v. State, No. 03-04-00643-CR, 2006
WL 1649029, at *4–5 (Tex. App.—Austin June 15, 2006, no pet.) (mem. op., not
designated for publication) (holding evidence legally sufficient to support driver’s
conviction because the jury, as the exclusive judge of the credibility of the
witnesses, was entitled to believe officer’s testimony that he was watching the
passengers who remained in the car after appellant was arrested and placed in
patrol car and that officer would have seen any attempt by the passengers to
stash the drugs in the manner and location where they were found).


                                         11
