                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00179-CR


DALLAS CARL TATE                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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

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                           DISSENTING OPINION

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      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

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       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).


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