                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00117-CR


CHRISTOPHER YARBOROUGH                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1313733D

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                DISSENTING MEMORANDUM OPINION1

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      I respectfully dissent from the majority’s holding that when viewing the

evidence in light most favorable to the prosecution that the trial court could have

found beyond a reasonable doubt that Yarborough knowingly possessed the

methamphetamine found under a bed in a bedroom in an apartment where seven

individuals were found at the time police conducted their search. Jackson v.


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       See Tex. R. App. P. 47.4.
Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 2793 (1979); Dobbs v. State, 434

S.W.3d 166, 170 (Tex. Crim. App. 2014).

      The trial court determined that Yarborough’s presence at the apartment in

which methamphetamine was found under a bed that evidence shows was a

shared room between him and co-defendant Bass, coupled with the presence of

legal documents with Yarborough’s name and signature on them, men’s clothing,

a bag containing men’s personal hygiene items, and the fact that the

methamphetamine along with drug paraphernalia were found in a safe containing

a set of digital scales with the nicknames of both he and co-defendant Bass

handwritten on them in pink marker, as well as $650 cash found on Yarborough’s

person were sufficient “links” to find Yarborough guilty beyond a reasonable

doubt of possessing the methamphetamine found under the bed.

      That a person can be convicted of possession of a controlled substance on

such tenuous connections is disturbing, and our jurisprudence should not abide

such a result, especially given that each of these facts establish that Bass, or any

of the other six occupants of the house, could have possessed the

methamphetamine. See Meyers v. State, 665 S.W.2d 590, 595 (Tex. App.—

Corpus Christi 1984, pet. ref’d) (“Control of the apartment is not synonymous with

control of the contraband when the appellant does not have sole access.”)

      In fact, other links not discussed by the majority tend to connect Bass to

the methamphetamine instead of Yarborough.           Indeed, the officers’ search

warrant was predicated on a controlled buy that Bass conducted with the


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confidential informant whereby Bass sold methamphetamine to the confidential

informant. The logical inference from this purchase is that Bass, not Yarborough,

possessed the methamphetamine. The nicknames found inscribed on the digital

scales was done so using a hot pink marker. The logical inference from the

writing and the color of the marker used to inscribe the digital scales is that the

scales belonged to Bass, or at a minimum that the inscription was written by

Bass. Furthermore, one of the other occupants of the apartment was found to

have possessed 27.92 grams of methamphetamine in her purse. The logical

inference from this is that both Bass and the other female individual were the

ones possessing and selling methamphetamine.            And $650 cash found on

Yarborough is simply insufficient of itself to prove possession.

      That Yarborough may have previously possessed methamphetamine and,

possibly, was even previously dealing drugs, is not sufficient to find that he

possessed the methamphetamine found under the bed. The evidence in the

record linking Yarborough to the methamphetamine is simply not enough to

establish possession.    The State proved no more than a mere probability or

strong suspicion, that Yarborough jointly possessed the methamphetamine. But

“[p]roof amounting only to strong suspicion or mere probability will not suffice” to

support a conviction for possession. See Roberson v. State, 80 S.W.3d 730, 742

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Possession means more than

merely “being where the action is.” Meeks v. State, 692 S.W.2d 504, 511 (Tex.

Crim. App. 1985) (quoting Wilkes v. State, 572 S.W.2d 538, 540 (Tex. Crim. App.


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1978)). While recognizing that the State need only prove joint possession, here

joint possession among seven people is a stretch. I would hold that the State

failed to prove that Yarborough possessed the methamphetamine found under

the bed and therefor I dissent.


                                                /s/ Bill Meier
                                                BILL MEIER
                                                JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2015




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