                                                                       Acosta dissent–Page 1




           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0967-15



                    GENARO GALVAN ACOSTA, JR, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                           LIVE OAK COUNTY

              M EYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The court of appeals correctly applied the affirmative links standard from Evans v.

State, 202 S.W.3d 158 (Tex. Crim. App. 2006) and concluded that most of the factors

used to show an affirmative link were not present in this case. The majority refers to this

as a “divide and conquer” analysis and says that the court of appeals should not have

considered what evidence was missing. Instead, the majority takes what little evidence

was presented and draws inferences from the evidence until it cumulates enough to
                                                                       Acosta dissent–Page 2

support Appellant’s conviction. This is exactly what the majority did in Murray v. State,

457 S.W.3d 446 (Tex. Crim. App. 2015), and I dissented to the use of such attenuated

inferences.

       The observations made by the officers in this case may have amounted to probable

cause to arrest Appellant, but they do not affirmatively link Appellant to the drugs found

in the car. Because Appellant was not in exclusive possession of the place where the

drugs were found, more investigation should have been conducted after Appellant’s arrest

to establish whether he exercised actual care, custody, or control over the drugs as

required to prove unlawful possession of a controlled substance. I agree with the court of

appeals that the evidence presented to the jury was insufficient to support Appellant’s

conviction and I therefore respectfully dissent.




Filed: November 23, 2016

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