Affirmed and Majority Opinion and Dissenting Opinion filed September 24,
2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00504-CR

                     MANUEL ESPINO-CRUZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1531630

                            DISSENTING OPINION

      The instant case lacks (1) the necessary “affirmative links” between
Appellant and the drugs, and (2) sufficiently just reasons to authorize our courts to
convict Appellant for merely being within some unidentified proximity to
contraband. I am therefore obliged to dissent from the majority’s affirmation of
the jury’s verdict and would vacate Appellant’s conviction.
      The majority correctly identifies the applicable standard but misapplies it to
the facts. Even when the facts are viewed in the light most favorable to the jury’s
verdict, there is no evidence tending to establish Appellant knowingly possessed
the drugs (or even knew they were present), much less that he intended to sell
them.
        The Texas Court of Criminal Appeals has held a list of factors can support
juries’ findings that defendants knowingly possessed drugs when they were not in
exclusive possession of the place where said drugs were found; the absence of any
given factor (or even all remaining factors together), however, is not exculpatory.
See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008,
pet. ref’d) (citing Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App.
1976)). To satisfy the requisite “affirmative links” test, the majority rests its
conclusion on the following:
   • Appellant was found in a suspicious place under suspicious
     circumstances;

   • Appellant was riding in the Fusion’s front passenger seat when
     officers conducted the search and found the heroin;

   • The officer immediately smelled a strong odor of heroin (after
     opening the trunk);

   • There was a large amount of heroin discovered;

   • The drugs were found in the trunk of the car, which is an enclosed
     space and was accessible within the vehicle because the trunk latch
     could be accessed from inside the vehicle; and

   • Appellant was found with a phone in his hand when he was detained.

These factors (both individually and collectively) (1) are incapable of establishing
constitutionally sufficient affirmative links to justify a conviction, and (2) illustrate
that despite clearly established jurisprudence concerning the right to remain free
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from unreasonable seizures and convictions, some prosecutors, courts, and juries
remain prepared to seek, sustain, and assess criminal convictions based on mere
proximity to contraband combined with other irrelevant “evidence” of guilt. See
generally Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) (“Mere
presence at the location where drugs are found is insufficient, by itself, to establish
actual care, custody, or control of those drugs.”); see also Waldon v. State, 579
S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1979).
      First, the majority importantly cites Robinson v. State, 174 S.W.3d 320, 326
(Tex. App—Houston [1st Dist.] 2005, pet. ref’d) (“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.”) (emphasis added)
(citing Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. [Panel Op.] 1981)
and Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981));
see also Tate v. State, 463 S.W.3d 272, 280 n.5 (Tex. App.—Fort Worth 2015),
rev’d on other grounds, 500 S.W.3d 410 (Tex. Crim. App. 2016) and Villarreal
Lopez v. State, 267 S.W.3d 85, 93 n.24 (Tex. App.—Corpus Christi 2008, no pet.).
In Robinson, (1) appellant was seated in the front passenger seat, (2) “[t]he cocaine
was discovered in a factory compartment located in the back wall of the truck,
which could be seen and accessed only by folding down the truck’s back seat,” (3)
said compartment was “unlocked and unable to be closed completely because a
shirt was stuffed in the opening,” and (4) appellant had keys to the truck.
Robinson, 174 S.W.3d at 326-27.            The drugs therein were “conveniently
accessible”. The instant case is devoid of comparable facts and the drugs here
were therefore not “conveniently accessible” under Texas law.
      Second, the majority relies on testimony that the trunk could be opened from
the inside, thereby enabling Appellant to “access the drugs without a key”. This
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proposition as an “affirmative link” is uncited and effectively announces a new
rule: without more, any passenger in Texas in a car carrying contraband in a trunk
not protected by a lockable (and locked) internal trunk release is now sufficiently
linked to said contraband to justify a criminal conviction. I cannot agree therewith.
      Third, there is simply no evidence that could enable a jury to find Appellant
ever touched, opened, or even looked at (1) any relevant item, (2) the trunk release,
or (3) the trunk (much less inside the trunk or any object therein); therefore, there
is zero evidence capable of sustaining Appellant’s conviction. Moreover, there is
no evidence Appellant had the ability to access the trunk (1) from the passenger
seat, (2) from the inside of the vehicle, or (3) while the vehicle was moving;
therefore, the drugs were not “easily accessible while in the vehicle.”          See
Robinson, 174 S.W.3d at 326 (emphasis added). These facts preclude a finding
that the drugs were “conveniently accessible” and are insufficient to affirmatively
link Appellant thereto.
      Fourth, “[i]t has been many times held that the mere presence of an accused
at the time and place of the commission of an offense, in the absence of proof of an
agreement to commit it, does not render him guilty.” De Grace v. State, 115 Tex.
Crim. 558, 560, 27 S.W.2d 186 (1930) (emphasis added) (citing Branch’s P. C.
§681; Golden v. State, 18 Tex. Ct. App. 639 (1885); Jackson v. State, 20 Tex. Ct.
App. 192 (1886); Elliott v. State, 109 Tex. Crim. 270 (1928), and “authorities there
cited.”). “[P]resence or proximity, when combined with other evidence, either
direct or circumstantial (e.g., ‘links’), may well be sufficient to establish that
element beyond a reasonable doubt.” Black v. State, 411 S.W.3d 25, 28 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (emphasis added) (citing Evans, 202
S.W.3d at 161-62).        “This ‘affirmative links rule’ is designed to protect the
innocent bystander from conviction based solely upon his fortuitous proximity to
someone else’s drugs.” Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim.
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App. 2005) (emphasis added), abrogated on other grounds by Robinson v. State,
466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) (citing United States v.
Phillips, 496 F.2d 1395, 1397-99 (5th Cir. 1974) (“Proof of mere proximity to
contraband is not sufficient to establish actual constructive possession or the
element of knowledge”; distinguishing the “non-explaining possessor” from the
“incredible non-possessor”, and concluding that evidence was sufficient because
“[t]here are no facts in this case tending to establish exclusive possession and
knowledge by [co-defendant]”)).
      Our sister courts have issued opinions clarifying the strength of purported
affirmative links when there is no evidence a defendant (e.g.,):
      (1)    owned the vehicle;
      (2)    was driving the vehicle;
      (3)    was asked for permission to search the vehicle (because he was not in
             control of it);
      (4)    possessed any of the trunk’s contents;
      (5)    had fingerprints on any relevant item or on anything in the trunk;
      (6)    attempted to flee;
      (7)    made incriminating statements;
      (8)    made furtive gestures;
      (9)    was under the influence of any drugs;
      (10) was found in proximity to any drugs inside the vehicle (excluding the
             trunk); and
      (11) was found in proximity to any paraphernalia for using contraband
             inside the vehicle.

See generally Jenkins v. State, 76 S.W.3d 709, 716 (Tex. App.—Corpus Christi
2002, pet. ref’d) (summarizing Dixon v. State, 918 S.W.2d 678, 679 (Tex. App.—


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Beaumont 1996, no pet.)). In Dixon, the court found the evidence was insufficient
to sustain the conviction because there was no evidence the defendant had actual
care, custody, control, or management over the contraband. 918 S.W.2d at 682;
see also Moreno v. State, 821 S.W.2d 344, 352 (Tex. App.—Waco 1991, pet.
ref’d) (insufficient links to connect passenger to cocaine found under the hood of
the vehicle (despite the fact that he had cocaine in his wallet) when he (1) was not
connected with the ownership or control of the car; (2) made no furtive gestures;
(3) did not attempt to escape; (4) made no incriminating statements; (5) was not
under the influence of an illegal drug; and, (6) the odor of an illegal drug was not
present in or around the vehicle); Humason v. State, 699 S.W.2d 922, 923 (Tex.
App.—Houston [1st Dist.] 1985) (insufficient links when (1) driver was the truck’s
sole occupant and (2) the bag with drugs “was unzipped and close to appellant,
thus suggesting that he had immediate access to the contents of the bag”), aff’d,
728 S.W.2d 363 (Tex. Crim. App. 1987); and Jenkins, 76 S.W.3d at 717-18
(insufficient links where appellant was effectively a non-owner and unintoxicated
passenger who did not attempt to flee and made no furtive gestures, a “large”
quantity of drugs were “secreted” in the trunk (not in plain view), the owner
consented to a search, the trunk was locked, the odor of the contraband was “not
detected until [the officer] opened the trunk,” there was “no evidence of appellant
being present when the trunk was opened prior to [the officer’s] search, and no
paraphernalia was “found on appellant or in his luggage”).
      Employing the legal sufficiency standard of review and viewing the
“affirmative links” in the light most favorable to the prosecution, the majority
erroneously holds the evidence is sufficient to sustain a conviction for possession
of contraband. When the evidence here is viewed in that same light, it is plainly
insufficient to prove Appellant’s intent to distribute same and does not sufficiently
link the contraband to Appellant in such a manner and to such an extent that a
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reasonable inference may arise that he (1) knew of the contraband’s existence or
(2) exercised any control over it. Additionally, the narcotics officer testified he did
not examine or download any data from Appellant’s phone and could not thereby
link him (even circumstantially) to the confidential informant or the drugs; here,
the absence of such evidence plainly demonstrates its unavailability, unreliability,
or irrelevance. Finally, there was conflicting testimony at trial between the two
testifying officers (the narcotics officer and the traffic patrolman) about the type of
car carrying the contraband. That testimony was never reconciled and cannot
sustain this conviction under these circumstances.
      Simply put, the evidence of Appellant’s guilt is (1) his mere presence in a
car with an unlockable trunk containing contraband and (2) a cell phone that was
never connected to the confidential informant. See Jenkins, 76 S.W.3d at 719 n.13
(“To accept the State’s argument would permit a single factor indicating guilt to
trump any number of other factors which did not tend to establish possession. But
that is not our law; the determination of whether the evidence is sufficient to
affirmatively link the accused to the contraband must be made not by applying
some rigid algebraic formula, but on a case by case basis.”) (citing Whitworth v.
State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d)).
      As an intermediate appellate court, we are entrusted with the solemn
obligation to vindicate guaranteed Due Process protections. See generally Griffin
v. State, 614 S.W.2d 155 (Tex. Crim. App. [Panel Op.] 1981); see also Tex. Const.
art. V §6(a). In this case, we have failed to do so because “the record contains no
evidence, or merely a ‘modicum’ of evidence, probative of an element of the
offense.” Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012) (quoting
Jackson, 443 U.S. 307, 320 (1979), and Laster v. State, 275 S.W.3d 512 (Tex.
Crim. App. 2009) (“After giving proper deference to the factfinder’s role, we will
uphold the verdict unless a rational factfinder must have had reasonable doubt as to
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any essential element.”)). Regardless of whether Appellant committed a crime, we
are duty-bound to ensure the State proves he did so beyond a reasonable doubt in a
manner that comports with our shared, agreed-upon, and fundamental principles of
justice. The State failed to do so and Appellant’s conviction should therefore be
vacated.



                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Justices Wise, Jewell, and Hassan. (J., Jewell, majority).

Publish — Tex. R. App. P. 47.2(b).




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