                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00067-CR
        ______________________________


           JACK SAYADETH, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 159th Judicial District Court
              Angelina County, Texas
               Trial Court No. 28,305




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION

        In this case involving the possession of more than four ounces but less than five pounds of

marihuana, there are three principal characters: Jack Sayadeth, Menia Xayavong, and Deshun

Whitby. Sayadeth and Xayavong were travelling together in a Lincoln Navigator along U.S.

Highway 59 in Angelina County 1 and Whitby was riding alone, piloting a Cadillac in close

proximity to them when this travelling party caught the attention of two peace officers in separate

vehicles.

        One of the peace officers noticed a traffic violation committed by Whitby in the Cadillac

and pulled the car over. During this traffic stop, a consensual search of the automobile was

conducted and the marihuana was discovered, concealed in the trunk.

        Not very much further along the highway, the other officer stopped the Lincoln bearing

Sayadeth and Xayavong for a separate traffic violation. The suspicions of this officer were

aroused when Xayavong and Sayadeth gave conflicting answers to his questions about their

travels. After the officer detected the smell of marihuana on Sayadeth, he searched the vehicle;

however, this search did not reveal the presence of any contraband, but that car contained the

driver‟s license of Whitby (who was driving the Cadillac stopped by the other officer). The State

charged all of Whitby, Xayavong, and Sayadeth with possession of the marihuana located in the


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                        2
Cadillac. Whitby entered a plea of guilty, but Xayavong and Sayadeth entered not guilty pleas

and were tried together as co-actors in a trial before the court. After the bench trial, both

Xayavong and Sayadeth were found guilty and each was sentenced to two years‟ confinement in a

state-jail facility.

        On appeal, Sayadeth argues that the evidence was legally and factually insufficient to

support his conviction.

        We reverse the trial court‟s judgment finding Sayadeth guilty and render a judgment of

acquittal because there is legally insufficient evidence affirmatively linking him to the drugs.

        At the risk of redundancy, we repeat some of the evidence, but with more detail. At about

midnight, Angelina County sheriff‟s deputies Rusty Allen and Joseph Davidson were patrolling

U.S. Highway 59 when they saw a Cadillac and a Lincoln traveling closely together. Allen

stopped the Cadillac because the license plate light was not working, and Davidson continued to

follow the Lincoln. The driver of the Cadillac, Whitby, was nervous and could display neither a

driver‟s license nor any valid proof of liability insurance. Whitby did not appear intoxicated and

did not smell of alcohol or drugs. Whitby claimed to be returning to Arkansas from visiting his

brother in Houston. He also claimed to be traveling alone.

        Whitby maintained that the vehicle was registered to Xayavong and that information was

confirmed by Allen via a computer check. Allen testified that Whitby told him he was driving

Xayavong‟s car because “his was broke down.” At trial, Whitby and Xayavong testified that a



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few weeks prior to the events in question, Whitby agreed to purchase the Cadillac from his former

schoolmate, Xayavong. He paid her $500.00 and she allowed him to drive the car while making

payments on the balance.

        Whitby gave Allen consent to search the Cadillac. Nothing was found in the passenger

compartment, but Allen discovered four pounds of marihuana in the vehicle‟s trunk, concealed in

the wheel well beneath a bolted-on speaker box.

        While Allen stopped the Cadillac, Davidson continued to follow the Lincoln driven by

Xayavong and also bearing Sayadeth. Allen observed the Lincoln to twice change driving lanes

without first making a signal and stopped the car about two miles distant from where Allen had

stopped the Cadillac. Davidson testified that both Xayavong and Sayadeth appeared nervous and

the two provided conflicting answers about their trip. On one hand, Xayavong told Davidson that

she had arrived in Houston on Wednesday and was visiting family there, but Sayadeth told

Davidson he was visiting family in Houston and he had arrived in Houston on Monday. Although

both claimed that no one was traveling with them, Sayadeth later admitted that they were

accompanied on their trip by a friend of theirs, who was driving Xayavong‟s car back to Arkansas

for them.2 While questioning Sayadeth, Davidson noticed the smell of marihuana on Sayadeth,

and based upon that smell, he searched the vehicle––the search revealing no drugs, but disclosing

Whitby‟s driver‟s license.

2
 At trial, Xayavong, Sayadeth, and Whitby all testified that the Lincoln was having car trouble and they were
concerned that it might break down on the trip back from Houston. Whitby agreed to drive the Cadillac and travel
with them in case of car trouble.

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        After charges for possession of the drugs were lodged against all three, Whitby pled guilty

and admitted that he bought and hid the drugs, maintaining that neither of the other two defendants

knew anything about it. As stated above, Xayavong and Sayadeth were both found guilty in a

bench trial.

There Is Legally Insufficient Evidence Linking Sayadeth to the Drugs Found in the Cadillac

        Sayadeth argues that the trial court erred by denying his motion for directed verdict

because the evidence was legally insufficient to link him to the marihuana found in the Cadillac.

We agree.

        In reviewing the evidence for sufficiency, we consider 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,

318–19 (1979).

        In order to prove its case under Section 481.121 of the Texas Health and Safety Code, the

State was required to prove that (1) Sayadeth exercised actual care, control, and management over

the contraband; and (2) Sayadeth knew the substance in his possession was contraband.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State, 200 S.W.3d

753, 761 (Tex. App.––Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App. 2007); see TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon 2010). “Possession” is defined as “actual




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care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp.

2010).

         Where, as here, an accused is not in exclusive possession of the place where contraband is

found, additional independent facts and circumstances must be developed which link the

defendant to the contraband in order to raise a reasonable inference of the defendant‟s knowledge

and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule is designed to protect

an innocent bystander from conviction merely because of fortuitous proximity to someone else‟s

drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the

vicinity of a controlled substance is insufficient to show possession. But proximity, when

combined with other direct or circumstantial evidence, may be sufficient to establish beyond a

reasonable doubt a person‟s possession of a controlled substance. 3                             See id. (direct or

circumstantial evidence may be sufficient to establish possession beyond a reasonable doubt).

The evidence linking the accused to the contraband “must establish, to the requisite level of

confidence, that the accused‟s connection with the drug was more than just fortuitous.”

Poindexter, 153 S.W.3d at 405–06. The number of links is not dispositive; rather, we look to the

“logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.


3
 We note that the Texas Court of Criminal Appeals stated, “We have used that term „affirmative links,‟ but we
recognize that „affirmative‟ adds nothing to the plain meaning of „link.‟ Henceforth, we will use only „link‟ so that it
is clear that evidence of drug possession is judged by the same standard as all other evidence.” Evans, 202 S.W.3d at
162. Nevertheless, that court has continued to use the term “affirmative links.” Laster v. State, 275 S.W.3d 512, 520
(Tex. Crim. App. 2009); Malone v. State, 253 S.W.3d 253, 258 (Tex. Crim. App. 2008). Therefore, because of its
common use and understood meaning, we do likewise.

                                                           6
       The following is a nonexclusive list of factors that have been found to be sufficient, either

singly or in combination, to establish a person‟s possession of contraband: (1) the defendant‟s

presence when a search is conducted; (2) whether the contraband was in plain view; (3) whether

the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place

where the contraband was found was enclosed; (5) whether the defendant was under the influence

of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics

when arrested; (7) whether the defendant made incriminating statements when arrested;

(8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures;

(10) whether there was an odor of contraband present at the scene; (11) whether other contraband

or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the

place where the contraband was found; (13) whether the defendant was found with a large amount

of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant

indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211

S.W.3d 379, 385–86 (Tex. App.––San Antonio 2006, pet. ref‟d).

       Here, Whitby testified that he bought and concealed the drugs and that Sayadeth had no

knowledge of it. Sayadeth was a passenger in the Lincoln, whereas the drugs were found in the

Cadillac. Sayadeth was not present at the scene where the drugs were found, and he had no way

of accessing them. The State emphasizes that Sayadeth smelled like marihuana and that he and

Xayavong gave conflicting statements concerning their trip plans and activities. However, there



                                                7
was no evidence that Sayadeth had consumed marihuana or that he was otherwise under its

influence; none of Sayadeth‟s statements (contradictory or otherwise) connect him to the

contraband found in the Cadillac driven by and under the control of another person. Even

viewing the evidence in the light most favorable to the verdict, the quality of the evidence here is

far too weak and the links too attenuated for a rational trier of fact to find beyond a reasonable

doubt that Sayadeth knew of, or had control over, the contraband. Accordingly, we reverse the

trial court‟s judgment finding Sayadeth guilty and render a judgment of acquittal because there is

legally insufficient evidence affirmatively linking him to the contraband.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        November 9, 2010
Date Decided:          November 10, 2010

Do Not Publish




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