                                                                                ACCEPTED
                                                                            03-14-00682-CR
                                                                                    6801098
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       9/4/2015 11:45:30 AM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK




                                                            FILED IN
                                                     3rd COURT OF APPEALS
                      No. 03-14-00682-CR                 AUSTIN, TEXAS
                                                     9/4/2015 11:45:30 AM
                              In the                   JEFFREY D. KYLE
                         Court of Appeals                    Clerk
                          Third District
                          Austin, Texas

                Peter Uchechukwu Ezebunwa,
                          Appellant

                                  v.

                       The State of Texas,
                            Appellee

           Appeal from the 427th Judicial District Court
                      Travis County, Texas
               Cause Numbers D-1-DC-10-206948

                        STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 4
Argument............................................................................................. 5
 Reply Point: The evidence is legally sufficient to prove, by a
 preponderance of the evidence, that Appellant had care, custody, or
 control of the cocaine........................................................................ 5
Prayer .................................................................................................. 7
Certificate of Compliance and Service................................................. 8




                                                       i
                                    Index of Authorities

     Cases
Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995) ..................... 5
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) .................... 5
Poindexter v. State, 115 S.W.3d 295 (Tex. App.—Corpus Christi 2003)
  .......................................................................................................... 6
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005)............. 6
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)................... 5




                                                        ii
                      No. 03-14-00682-CR

                               In the
                          Court of Appeals
                           Third District
                           Austin, Texas

                  Peter Uchechukwu Ezebunwa,
                            Appellant

                                  v.

                       The State of Texas,
                            Appellee

            Appeal from the 427th Judicial District Court
                       Travis County, Texas
                Cause Numbers D-1-DC-10-206948

                         STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s briefs.


                        Statement of Facts

   In November, 2010, Appellant was arrested for possession of a

baggy that contained 30-40 rocks of crack cocaine, which weighed

about 9 grams. CR 6-7. The trial court deferred adjudication and

placed Appellant on 4 years’ community supervision. CR 51-54. The


                                       1
State filed several motions to adjudicate over the next several years,

but each time, Appellant was continued on community supervision

with additional treatment. CR 56, 63-64, 66- 67, 75, 79, 148, 150, 154.

      The appeal in this case arises from the fifth motion to adjudicate,

which alleged that Appellant violated the conditions of community

supervision by committing a subsequent criminal offense of

possession of a controlled substance. CR 158.1 The trial court held a

hearing on the motion to adjudicate, and the evidence showed that:

      On April 9, 2014, Christina Hamilton called 911 to report that

several people were selling drugs in her backyard and the adjoining

alley behind her house. 5RR 24-25. It was around 11 p.m. in an area

“notorious” for drug dealing. 5RR 24, 28, 39, 50-51. Hamilton said

she had asked the people to leave but did not push the issue for fear of

retaliation. 5RR 26. Hamilton said that the primary suspect was

named “E” and was African, and when officers arrived, she


1   There are other allegations in the motion to adjudicate, but none of these
    support the trial court’s decision to adjudicate on their own. The State
    alleged that Appellant had a positive urine specimen for PCP, but this
    allegation was later abandoned. 5RR 12-13. The State also alleged failure to
    pay fees and restitution, but there is no evidence in the record as to
    Appellant’s ability to pay. 5RR 13-14, 20-21. Finally, the State alleged that
    Appellant failed to complete SAFPF Aftercare as directed, but the sole
    reason for his failure was his arrest on the new offense. 5RR 18-19.


                                            2
specifically pointed at Appellant, who was wearing a green and orange

jacket. 5RR 27-28, 38, 48-49. The officers had the “same

conversation” with Hamilton’s daughter. 5RR 39.

   Officers Euhus and Bolin covertly observed Appellant for a minute

or two before Appellant became aware of their presence. The officers

saw Appellant standing in the alley by a folding chair. He did not

seem to be walking through, but rather, he just stood there, shifting

his weight and looking around. 5RR 27-29, 49-50. Three other

subjects were about 10 feet away from Appellant. 5RR 28, 57. When

the subjects noticed the police, they began walking away “pretty

briskly.” The officers caught up and detained everyone, including

Appellant. 5RR 29, 51-52.

   Euhus found a “very obviously recently constructed rock pile” in

the area that Appellant had been standing. 5RR 31, 52. Bolin testified

that the rock pile was “right next to” where Appellant had been

standing, which he estimated to be less than a foot away. 5RR 56.

Euhus testified that he saw Appellant standing a “lungeable distance”

away from the rock pile, which he estimated to be 3 to 5 feet away.

5RR 37-38. Euhus kicked over the rock pile and found a baggy



                                     3
containing 8 grams of crack cocaine rocks, with an estimated street

value of $500-$800. 5RR 31, 43, 67.

   Appellant told the police that he was just walking through the

alley. 5RR 33-34, 54. This story was obviously inconsistent with the

officers’ own observations as well as the report by Hamilton and her

daughter.

   Police arrested Appellant and found $740 cash, in small

denominations, in a single stack, not in a wallet, which was consistent

with drug dealing. 5RR 35, 53. Appellant had a pay stub for $199, but

he had no explanation for the remaining $541. 5RR 34-35.

   At the conclusion of the hearing on the motion to adjudicate, the

trial court found that the preponderance of the evidence showed that

Appellant had care, custody, and control over the cocaine, and the

court revoked Appellant’s probation. 5RR 73-75; CR 176-77.


               Summary of the State’s Argument

   The trial court did not abuse its discretion in revoking Appellant’s

probation because a preponderance of the evidence showed that

Appellant exercised care, custody, or control over the cocaine.




                                    4
                              Argument

Reply Point: The evidence is legally sufficient to prove, by a
preponderance of the evidence, that Appellant had care,
custody, or control of the cocaine.

   A trial court’s order revoking probation is reviewed for an abuse of

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006). Such an order must be supported by a preponderance of the

evidence; in other words, that greater weight of the credible evidence

which would create a reasonable belief that the defendant has

violated a condition of his probation. Id. at 763-64.

   To prove possession of a controlled substance, the evidence must

show that (1) the defendant exercised control, management, or care

over the substance, and (2) the defendant knew the substance was

contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.

2006).

   The evidence does not have to be so strong as to exclude every

other reasonable hypothesis except the defendant's guilt. Brown v.

State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). But the evidence

must establish more than mere presence near the contraband. This is

the so-called "affirmative links" rule, which is designed to protect



                                     5
innocent bystanders from conviction. It is the logical force of all of the

direct and circumstantial evidence, not the number of links, that is

dispositive. Id. at 161-62.2

      Appellant argues that the evidence is insufficient to prove that he

had care, custody, or control of the cocaine.3 There are multiple links

in this case, however, that amply prove care, custody, or control by a

preponderance of the evidence.

      First and foremost, Hamilton specifically pointed out Appellant

(who was wearing a distinctive green and orange jacket) as the

primary suspect dealing drugs behind her house. She even reported

that his name was “E.” Hamilton’s daughter appears to have given the

same information to police as well.4


2   For examples of affirmative links, see Poindexter v. State, 115 S.W.3d 295,
    299 (Tex. App.—Corpus Christi 2003), rev’d at 153 S.W.3d 402, 407-13 (Tex.
    Crim. App. 2005).
3   Many of the cases cited by Appellant are distinguishable because the State’s
    burden in those cases was beyond a reasonable doubt. In the present case,
    the State’s burden is only a preponderance of the evidence.
4   This evidence is hearsay because Hamilton and her daughter did not testify,
    but these facts were testified to by the police officers, without objection, and
    this evidence was considered by the trial court. 5RR 27-28, 38-39, 48-49,
    73-75. Once the trier of fact has weighed the probative value of unobjected-
    to hearsay evidence in its factfinding process, an appellate court cannot deny
    that evidence probative value or ignore it in its review of the sufficiency of
    the evidence. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
    2005).


                                            6
   Additional links include that Appellant was found in close

proximity to the cocaine; there was a large amount of cocaine, with an

estimated street value of $500-800; Appellant was found with a large

amount of cash; the cash was in a single stack of small

denominations, which is consistent with drug dealing; Appellant had

no explanation for the majority of the cash; Appellant lied to the

police about how long he had been present in the alley; Appellant had

no apparent reason for hanging out in the alley at 11 p.m.; and the

alley and surrounding area was notorious for drug dealing.

   Based on all of the above, the trial court did not abuse its

discretion in finding that Appellant was linked to the cocaine by a

preponderance of the evidence.


                                Prayer

   The State asks this Court to overrule Appellant’s point of error and

affirm the trial court’s judgment.



                              Respectfully submitted,


                              Rosemary Lehmberg
                              District Attorney


                                     7
                              Travis County




                              Angie Creasy
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4810
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov


             Certificate of Compliance and Service
   I certify that this brief contains 1,565 words. I further certify that,

on the 4th day of September, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Amber Vazquez Bode, 1004 West Ave., Austin, Texas 78701.




                              Angie Creasy




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