                                                                    PD-0411-15
                    PD-0411-15                     COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                 Transmitted 4/13/2015 4:16:07 PM
                                                   Accepted 4/15/2015 4:58:11 PM
                                                                     ABEL ACOSTA
                    NO. _____________ PD                                     CLERK

                          IN THE

                    COURT OF CRIMINAL

                         APPEALS

                        OF TEXAS
       ___________________________________________

                    GARY DESHAUN DENT

                         Petitioner,

                            VS.

                    THE STATE OF TEXAS

                        Respondent
_________________________________________________________

            Petition in Cause No. CR30123 from the
            TH
         75 District Court of Liberty County, Texas and
                   the Court of Appeals for the
                      14TH District of Texas
_________________________________________________________

        PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

                                  TOM ABBATE
                                  440 LOUISIANA ST, STE 200
                                  HOUSTON, TX 77002
                                  T: 713.223.0404
                                  F: 800.501.3088
                                  tom@tomabbatelaw.com
   April 15, 2015                 SBOT # 24072501

                                  ATTORNEY FOR PETITIONER
          IDENTITIES OF PARTIES AND COUNSEL

1. PETITIONER:                GARY DESHAUN DENT

2. PRESIDING JUDGE:           HON. MARK MOREFIELD
                              75th District Court
                              Liberty County Courthouse
                              1923 Sam Houston Street, 3rd Floor
                              Liberty, Texas 77575
                              (936) 336-4678

3. PROSECUTORS:               MR. JOE WARREN
                              MR. MATTHEW POSTON
                              Assistant District Attorney
                              Liberty Co. District Attorney’s Office
                              1923 Sam Houston Street, Rm. 112
                              Liberty, Texas 77575
                              (936) 336-4609

4. TRIAL COUNSEL:             MR. CHAD ETHERIDGE
                              5111 Center St.
                              Houston, Texas 77007
                              (713) 869-1155

5. APPELLATE COUNSEL:         MR. TOM ABBATE
                              440 Louisiana, Ste 200
                              Houston, Texas 77002
                              (713)-223-0404

6. APPELLEE COUNSEL:          MR. LOGAN PICKETT
                              Liberty County District Attorney
                              MR. STEPHEN C. TAYLOR
                              First Assistant District Attorney
                              Liberty Co. District Attorney’s Office
                              1923 Sam Houston, Rm. 112
                              Liberty, Texas 77575
                              (936) 336-4609




                          2
                                         TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL .........................................................2
INDEX OF AUTHORITIES......................................................................................4
STATEMENT REGARDING ORAL ARGUMENT ...............................................6
STATEMENT OF THE CASE ..................................................................................6
STATEMENT OF PROCEDURAL HISTORY........................................................7
QUESTION PRESENTED FOR REVIEW ..............................................................7
REASON FOR REVIEW ..........................................................................................7
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................11
CERTIFICATE OF COMPLIANCE .......................................................................11
APPENDIX ..............................................................................................................12




                                                           3
                                INDEX OF AUTHORITIES
Cases
Bethancourt-Rosales v. State, 50 S.W.3d 650 (Tex. App.—Waco 2001) .................9
Brown v. State, 911 S.W.2d 744 (Tex.Crim.App.1995) ............................................8
Dent v. State, 14-14-00536-CR (Tex.App.-Houston [14th District] 2015) .............10
Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App. 1981) .......................................8
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ......................................8, 9
Fields v. State, 932 S.W.2d 97 (Tex. App.—Tyler 1996, pet. ref d) .........................9
Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App.2005) .....................................7
Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002). ...10
Robinson v. State, 174 S.W.3d 320 (Tex. App.— Houston [1st Dist] 2005) ............9
Statutes
TEX. Health & Safety Code Ann.§ 481.002 .............................................................7




                                                  4
                      NO. _____________ PD

                              IN THE

                      COURT OF CRIMINAL

                             APPEALS

                            OF TEXAS

        ___________________________________________

                    GARY DESHAUN DENT

                             Petitioner,

                                VS.

                     THE STATE OF TEXAS

                         Respondent
 _________________________________________________________

             Petition in Cause No. CR30123 from the
            TH
         75 District Court of Liberty County, Texas and
            the Court of Appeals for the 14TH District
                Supreme Judicial District of Texas
__________________________________________________________

        PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
                APPEALS OF TEXAS

   Gary Dent, petitions the Court to review the judgment affirming
       his conviction for possession of a controlled substance,
    penalty group 3, with intent to deliver in Cause No. CR30123




                                 5
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would assist to resolve whether the evidence was legally

sufficient to support the conviction obtained against the Petitioner in this case.

                          STATEMENT OF THE CASE

      This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION

BY JURY finding GARY DESHAUN DENT (hereinafter, “Petitioner,”), GUILTY

of the charge of POSSESSION OF A CONTROLLED SUBSTANCE, PENALTY

GROUP 3, WITH INTENT TO DELIVER and sentencing him to 20 YEARS TDCJ

in Cause No. CR30195. (CLRK. REC. - 82). On April 16, 2013, a grand jury indicted

Appellant for the felony offense of knowingly possessing, with intent to deliver, a

controlled substance, namely, a material, compound, mixture, or preparation in an

amount of 400 grams or more, that contained not more than 300 milligrams of

dihydrocodeinone, or any of its salts, per 100 milliliters or not more than 15

milligrams per dosage unit, with one or more active nonnarcotic ingredients in

recognized therapeutic amounts. (CLRK. REC. – 2).

      On May 14, 2014, a jury was seated and sworn for trial in the above described

cause number. (CLRK. REC. – 121). After hearing testimony from the State on that

same day, the jury was excused to deliberate. On May 15, 2014, the foreperson of

the jury indicated that they had become deadlocked, the defense moved for mistrial,

and the trial court granted that motion and relieved the jury from further service.


                                           6
(CLRK. REC. – 121).

        On June 9, 2013, a new jury was seated and sworn. (CLRK. REC. – 122). The

following day, the jury returned a verdict of GUILTY and sentenced Appellant to

20 YEARS TDCJ after hearing evidence in both phases of trial. (CLRK. REC. –

122). Appellant filed a NOTICE OF APPEAL on June 25, 2014. (CLRK. REC. –

122).

                  STATEMENT OF PROCEDURAL HISTORY

        The court of appeals rendered its decision affirming the petitioner’s

conviction on March 12, 2015. The Petitioner did not file a motion for rehearing,

and the decision of the court of appeals became its final ruling on March 27, 2015.

This petition was then filed with the clerk of the court of appeals within 30 days after

such final ruling.

                     QUESTION PRESENTED FOR REVIEW

        Was the evidence in this case legally insufficient to convict Petitioner
        of the charge of possession of a controlled substance with intent to
        deliver.
                             REASON FOR REVIEW

        To prove unlawful possession of a controlled substance, the State must

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

over the substance; and (2) the defendant knew the matter possessed was contraband.

See TEX. Health & Safety Code Ann.§ 481.002(38); Poindexter v. State, 153

S.W.3d 402, 405 (Tex.Crim.App.2005). The evidence, either direct or
                                           7
circumstantial, "must establish, to the requisite level of confidence, that the accused's

connection with the drug was more than just fortuitous." Id. at 405-06 (quoting

Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995)). This rule is designed

"to protect the innocent bystander from conviction based solely upon his fortuitous

proximity to someone else's drugs." Id. at 406. Thus, when the defendant "is not in

exclusive possession of the place where the substance is found, it cannot be

concluded that the accused had knowledge of and control over the contraband unless

there are additional independent facts and circumstances which affirmatively link

the accused to the contraband." Id. (quoting Deshong v. State, 625 S.W.2d 327, 329

(Tex.Crim.App. 1981)).

      Texas courts have identified a non-exclusive list of possible "affirmative

links, "including (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 other contraband or drug paraphernalia was

present; (5) whether the defendant owned or had the right to possess the place where

the drugs were found; (6) whether the defendant was found with a large amount of

cash; and (7) whether the conduct of the defendant indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Additional link

factors include a defendant's "lack of surprise or concern" during an investigation

and the amount of contraband discovered. See Fields v. State, 932 S.W.2d 97, 104


                                           8
(Tex. App.—Tyler 1996, pet. ref d) (holding defendant's "unnatural equanimity and

lack of concern" is link factor); Bethancourt-Rosales v. State, 50 S.W.3d 650, 655-

56 (Tex. App.—Waco 2001, pet. refd) (same); Robinson v. State, 174 S.W.3d 320,

328-29 (Tex. App.— Houston [1st Dist] 2005, pet. ref d) (considering amount of

contraband).

      The evidence in this case was legally insufficient to convict Appellant of the

charge of possession of a controlled substance with intent to deliver. Under the list

of possible "affirmative links, addressed by the Evans court, only two are present,

namely, "the defendant's presence when a search is conducted; and whether the

conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at

162 n.12. It cannot be disputed that Appellant was present in the vehicle when the

contraband was found, and, at least according to Trooper Cash, Appellant appeared

to be nervous during the course of their interaction. (RR. VI – 104-12).

      However, the issue is not that these links are absent, but instead that evidence

exists that stands in contravention of the remaining links. Here, the contraband was

not in plain view, but was instead found within a hollow space behind the paneling

of the vehicle in a place not easily accessible to Appellant. Further, no other

contraband or drug paraphernalia was present and Trooper Cash testified that

Appellant did not possess a large sum of cash. Finally, Appellant did not own the

rental car, nor had he rented it himself, and therefore it is entirely possible that the


                                           9
narcotics belonged only to the co-defendant, or another person altogether. (RR. VI

– 107-119; VII – 38-63). Therefore, there exists evidence in contravention of

Appellant’s knowing possession.

      Further, additional requisite issues were not affirmatively proved by the State.

First, no fingerprint analysis was ever conducted. (RR. VII – 63). While the bags

themselves may not have retained fingerprints, it is logical to assume the opposite

with regard to the paneling behind which the narcotics were found. Such an analysis

was well within the ability of the Department of Public Safety, and may have been

helpful to protect Appellant from the consequences of his co-defendant’s actions.

      The Court of Appeals, however, relied on the amount of contraband found in

determining if an affirmative link existed. Roberson v. State, 80 S.W.3d 730, 740

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). According to the Court, “[t]he

power of this factor can reasonably be expected to increase as the amount of drugs

increases.” Dent v. State, 14-14-00536-CR (Tex.App.-Houston [14th District]

March 12, 2015). This reliance was misplaced, however, in light of the evidence

contradicting knowing possession outlined above.

                             PRAYER FOR RELIEF

      ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to


                                         10
support his conviction.

      Petitioner further prays for all relief to which he may be entitled.

                                               Respectfully submitted,


                                               /s/ Tom Abbate
                                               TOM ABBATE
                                               440 LOUISIANA ST, STE 200
                                               HOUSTON, TX 77002
                                               T: 713.223.0404
                                               F: 800.501.3088
                                               tom@tomabbatelaw.com
                                               SBOT # 24072501

                                               ATTORNEY FOR PETITIONER

                          CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the foregoing PETITION FOR

DISCRETIONARY REVIEW was delivered to the Liberty County District

Attorney’s Office by CERTIFIED MAIL on APRIL 13, 2015



                                           /s/ Tom Abbate
                                           TOM ABBATE

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that there are 1,715 words contained in this document.


                                           /s/ Tom Abbate
                                           TOM ABBATE

                                          11
APPENDIX




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