                                                                                               ACCEPTED
                                                                                           12-15-00073-CR
                                                                              TWELFTH COURT OF APPEALS
                                                                                            TYLER, TEXAS
                                                                                     10/27/2015 2:11:00 PM
                                                                                                 Pam Estes
                                                                                                    CLERK

                          CAUSE NO. 12-15-00073-CR

YAGO SANTAIN FOUNTAIN                   §        IN THE COURT OF APPEALS
                                                                   FILED IN
                                                                 12th COURT OF APPEALS
                                        §                             TYLER, TEXAS
V.                                      §        12TH JUDICIAL DISTRICT
                                                                 10/27/2015 2:11:00 PM
                                        §                               PAM ESTES
THE STATE OF TEXAS                      §        TYLER, TEXAS             Clerk




               STATE’S MOTION FOR REHEARING EN BANC


TO THE HONORABLE JUSTICES OF SAID COURT:

      Comes now the STATE OF TEXAS, and presents its Motion for Rehearing En

Banc in the above- numbered cause, and in support of this motion, would show the

Honorable Court the following:

                                            I.

      Appellant, Yago Fountain, was indicted in Cause No. 114-0896-14, filed in

the 114th District Court of Smith County, Texas, with the offense of Possession of

Marijuana. (CR: 1). On March 17, 2015, Appellant, with counsel, pleaded not guilty

to the charge contained in the indictment, a jury was selected and the case was tried.

After hearing the evidence and argument of counsel, the jury found Appellant guilty

as charged in the indictment. (RR 11: 231).

      During a short punishment hearing the State established that Appellant had a

prior federal conviction for distributing cocaine base. (RR 11: 241). He served close

to 10 years in the federal penitentiary and may have been on federal parole from that
conviction when he was arrested in this case. (RR 11: 266). After hearing evidence

and argument of counsel, the jury assessed the maximum sentence of 10 years and

a $10,000 fine. (RR 11: 278). Appellant gave notice of appeal and briefs were filed

by the parties. Thereafter, the Court aborted both the jury's finding of guilt and the

maximum sentence they had assessed, and ordered Appellant acquitted.

                                          II.

      On October 14, 2015, the Court issued its opinion in this case. The Court

agreed with Appellant’s sole point of error that the evidence was insufficient at trial

to show that he possessed marijuana. Fountain v. State, No. 12-15-00073-CR, 2015

Tex.App. LEXIS 10533 (Tex.App. - Tyler Oct. 14, 2015) (not designated for

publication). The State files this timely motion for rehearing pursuant to Rule 49.1

of the Rules of Appellate Procedure and respectfully requests that the Court

reconsider its opinion in this case for the following reasons:

A.    The affirmative links in this case were sufficient to establish the elements
      of the charged offense.

1.    The law provides that "in a possession of a controlled substance prosecution,

'the State must prove that: (1) the accused exercised control, management, or care

over the substance; and (2) the accused knew the matter possessed was contraband.'"

Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006) quoting Poindexter v.

State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). "Possession need not be

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exclusive, however, and a showing of joint possession with another is sufficient."

Siroky v. State, 653 S.W.2d 476, 479 (Tex.App. - Tyler 1983, pet. ref'd). Direct or

circumstantial evidence may be used to prove knowing possession of a controlled

substance. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). As the Court

of Criminal Appeals explained in Evans:

             Mere presence at the location where drugs are found is thus
      insufficient, by itself, to establish actual care, custody, or control of
      those drugs. However, presence 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.
      (footnote omitted).
                                                                     Id. at 162.

      The Court also provided a nonexclusive list of possible links that Texas courts

had recognized as 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) the defendant's proximity to and

the accessibility of the narcotic; (4) whether the defendant was under the influence

of narcotics when arrested; (5) whether the defendant possessed other contraband or

narcotics when arrested; (6) whether the defendant made incriminating statements

when arrested; (7) whether the defendant attempted to flee; (8) whether the

defendant made furtive gestures; (9) whether there was an odor of contraband; (10)

whether other contraband or drug paraphernalia were present; (11) whether the


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defendant owned or had the right to possess the place where the drugs were found;

(12) whether the place where the drugs were found was enclosed; (13) whether the

defendant was found with a large amount of cash; and (14) whether the conduct of

the defendant indicated a consciousness of guilt. Id. at 162 n.12.

2.    In this case, the opinion of the Court found that the State's affirmative link

evidence sufficiently showed that Appellant was aware that marijuana was hidden

under the hood of the vehicle in which he was traveling. Fountain, 2015 Tex.App.

LEXIS 10533 at *11. However, the Court thereafter disagreed with the jury's verdict

that the evidence established sufficient links to support an inference that Appellant

had "exercised care, custody, control or management over a substance." Fountain,

2015 Tex.App. LEXIS 10533 at *15.

      In discussing the lack of evidence concerning Appellant's control of the

contraband, the Court first noted that "[t]he borrowed Suburban, presence on

Interstate 20, Mitchell's and Appellant's conflicting statements, and Appellant's

nervousness and lack of surprise are links showing Appellant's knowledge of the

contraband inside the Suburban's engine compartment." Id. at 23.

      However, after agreeing with the jury's reasonable conclusion that Appellant

was aware that over eight pounds of marijuana was concealed under the hood of the

Suburban, the Court further found that: "there is no circumstantial evidence to show


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that Appellant exercised care, custody, control, or management over the marijuana"

as "he was a passenger, he was not under the influence of marijuana, he made no

statements linking himself to the marijuana, he possessed no other contraband or

paraphernalia on his person, he made no incriminating statements, and law

enforcement did not witness a drug transaction in Appellant's presence." Id.

      However, "the absence of the above facts and circumstances is not evidence

of appellant's innocence to be weighed against evidence tending to connect appellant

to the marihuana." Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App.

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

2008, pet. ref'd) ("The absence of various affirmative links does not constitute

evidence of innocence to be weighed against the affirmative links present"); Hurtado

v. State, 881 S.W.2d 738, 745 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd)

("Because our review is no longer based on whether the State disproves reasonable

alternatives to a defendant's guilt, we need not consider affirmative link factors that

are absent from the evidence.").

3.    And, in reaching its conclusion regarding a lack of circumstantial evidence,

the Court did not discuss the impact of evidence that was heard by the jury showing

that Appellant, jointly exercised care, custody and control over the marijuana. First,

it was undisputed at trial that there was no evidence that Appellant and Mitchell were


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ever apart from each other during the entire time they were on their one-day trip

from Louisiana to Dallas and back. (RR 11: 52, 78, 158). And, when Trooper Martin

pulled the hood release latch to have a look in the engine compartment, Appellant

and Mitchell "seem to be looking at each other and having a conversation as you're

popping that hood and walking up there." (RR 11: 154).

      If the two never separated, then logically, Appellant must have been with

Mitchell when they took custody of the marijuana and placed it under the hood.

Thus, if the jury concluded from this evidence that Appellant was equally in care

custody and control of the contraband, or even that it was Appellant who hid

marijuana, that would certainly be a reasonable deduction from the evidence.

      Additionally, when Trooper Martin first approached the Suburban, Appellant

had already unbuckled his seatbelt and appeared to the trooper to be contemplating

an escape attempt:

      Q.     You said he unbuckled his seat belt. That was unusual to you?

      A.     He just had this blank -- I don't want to say scared, but it was a
             wide-eyed look to him. And I immediately asked him if he was
             okay. And, you know, I think I even said, you know, "You plan
             on running? What's" -- you know, I made an issue out of it
             because that's not normal. Obviously, I'm up there by myself,
             and there's -- I see this vehicle's occupied by two people, and I
             just want to make sure, you know. In my mind, I'm wondering
             what's going through this gentleman's mind. You know, why is
             he acting like this?
                                                               (RR 11: 45-46).

                                       Page -6-
       The Court of Criminal Appeals has long considered flight to be strong

evidence of guilt. See e.g. O'Neal v. State, 111 Tex. Crim. 315, 318 (Tex.Crim.App.

1929) ("Flight has usually been regarded as a criminative fact. 'The guilty flee where

no man pursueth.'"). Mitchell likewise appeared to be contemplating a quick getaway

from the scene as he left his door open when Trooper Martin asked him to step out

of the vehicle:

       Q.    Okay. Did you actually show him the defective license plate
             lamp?

       A.    Yes, sir. When he stepped out, he actually left his driver's side
             door open in traffic, so I actually had to tell him, "Hey, go close
             your door," you know. Again, that's not normal either. I mean,
             most people, when you have them step out, they immediately
             close their door. So I had to tell him.
                                                                (RR 11: 48-49).

       Most respectfully, if the jury concluded from this evidence that both Mitchell

and Appellant were exercising care, custody and control over the marijuana that the

Court believes Appellant knew was hidden in the vehicle - why was that not a

reasonable deduction? "It is the logical force of the circumstantial evidence, not the

number of links, that supports a jury's verdict." Evans, 202 S.W.3d at 166.

       The standard for reviewing a legal sufficiency challenge is whether any

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-19, 99 S.Ct. 2781,


                                        Page -7-
2786-88, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.

App. 2010); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993).

The evidence in this case must be examined in "the light most favorable to the

verdict." Jackson, 443 U.S. at 319; Johnson, 871 S.W.2d at 186. This standard gives

full play to the sole responsibility of the trier of fact to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from the basic

facts to ultimate facts. Jackson, 443 U.S. at 319.

      Under the applicable standard, this Court "may not sit as a thirteenth juror and

substitute [its] judgment for that of the fact finder by reevaluating the weight and

credibility of the evidence." Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.

1999); see also Brooks, 323 S.W.3d at 899. Instead, the Court should defer to the

fact finder's resolution of conflicting evidence unless that resolution simply is not

rational. Brooks, 323 S.W.3d at 899-900.

      Here, the Court concluded from the record that, "unlike Blackman, there is no

circumstantial evidence in this case to show that Appellant exercised care, custody,

control, or management over the marijuana - he was a passenger, he was not under

the influence of marijuana, he made no statements linking himself to the marijuana,

he possessed no other contraband or paraphernalia on his person, he made no

incriminating statements, and law enforcement did not witness a drug transaction in


                                        Page -8-
Appellant's presence." Fountain, 2015 Tex. App. LEXIS 10533 at 23. However,

each of these missing links are equally absent from Mitchell as well - except for the

mere fact that he was sitting in the seat next to Appellant's. Similarly, every one of

the affirmative links recognized by the Court would also apply to Mitchell.

      Does this mean that the Court would also absolve Mitchell of exercising care,

custody and control over the marijuana hidden under the hood? Would it be

reasonable for the Court to conclude that, while the evidence sufficiently established

that both men were aware of the marijuana, neither of them exercised care, control

or custody over it? Or that only Mitchell exercised control simply because he

happened to be driving when Trooper Martin stopped the vehicle?

      The Court specifically found that "[t]he borrowed Suburban, presence on

Interstate 20, Mitchell's and Appellant's conflicting statements, and Appellant's

nervousness and lack of surprise are links showing Appellant's knowledge of the

contraband inside the Suburban's engine compartment." Id. at 23. This finding would

clearly apply to Mitchell as well, where the evidence showed that he too was

unusually nervous and was not surprised. (RR 11: 60, 80). Thus, the exact same

affirmative links, or lack thereof, apply to Mitchell as well as Appellant.

      In the State's view, it is inconceivable that the evidence could be found

sufficient to support that two individuals knowingly transported over eight pounds


                                        Page -9-
of marijuana from Dallas to Louisiana, and yet failed to establish that either ever

exercised care, custody or control over the contraband being transported.

      Consequently, for the reasons argued in the State's original brief, the jury's

verdict that Appellant was guilty as charged was both reasonable and founded upon

sufficient evidence. Most respectfully, when the Court found otherwise, it

improperly substituted its judgment for that of the fact-finders'. See Dewberry, 4

S.W.3d at 740.

                                       PRAYER

      WHEREFORE, premises considered, the State respectfully requests that the

Honorable Court reconsider its opinion in this case en banc regarding Appellant’s

point of error, and find that the evidence in this case sufficiently established the

elements of the offense charged, and affirm the verdict of the jury.



                                         Respectfully submitted


                                           /s/ Michael J. West
                                         ___________________________
                                         Michael J. West, SBN: 21203300
                                         Assistant Criminal District Attorney
                                         Smith County, Texas
                                         100 N. Broadway, 4th Fl.
                                         Tyler, Texas 75702
                                         (903) 590-1720
                                         (903) 590-1719 (fax)


                                        Page -10-
                         CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the pertinent sections of the State’s

Reply Brief in the above numbered cause contain 2,128 words, an amount which

complies with Texas Rule of Appellate Procedure 9.4 (i) (Vernon 2015).


                                        /s/ Michael J. West
                                       _________________________
                                       Michael J. West
                                       Asst. Criminal District Attorney


                         CERTIFICATE OF SERVICE

            October 27, 2015
       On ___________________________,            at true and complete copy of this
instrument has been sent via electronic filing to:

      Mr. Austin Jackson
      Attorney at Law
      112 East Line, Ste. 310
      Tyler, Texas 75702


                                         /s/ Michael J. West
                                       ___________________________
                                       Michael J. West, SBN: 21203300
                                       Assistant Criminal District Attorney
                                       Smith County, Texas
                                       100 N. Broadway, 4th Fl.
                                       Tyler, Texas 75702
                                       (903) 590-1720
                                       (903) 590-1719 (fax)




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