                                                                                  ACCEPTED
                                                                              03-15-00112-CR
                                                                                      5419608
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                         5/26/2015 3:18:22 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                        NO. 03-15-00112-CR

                          **************                    FILED IN
                                                     3rd COURT OF APPEALS
                                                         AUSTIN, TEXAS
   IN THE COURT OF APPEALS THIRD SUPREME        JUDICIAL   DISTRICT
                                                     5/26/2015 3:18:22 PM
                          AUSTIN, TEXAS                JEFFREY D. KYLE
                                                             Clerk
__________________________________________________________________

                     MATTHEW JARRETT LEE,
                                     Appellant,

                                VS.

                       THE STATE OF TEXAS,
                                         Appellee.
__________________________________________________________________

                  Appeal from Cause No.: 2014CR0532
              County Court at Law, #2, Comal County, Texas,
             The Honorable Charles A. Stephens, II, Presiding
__________________________________________________________________

                        APPELLANT’S BRIEF
__________________________________________________________________


                         Frank B. Suhr
                         State Bar No.: 19466300
                         LAW OFFICES OF FRANK B. SUHR
                         473 S. Seguin Ave., Suite 100
                         New Braunfels, Texas 78130
                         Tel: (830) 625-4345; Fax/Metro: (830) 606-4511
                         fsuhr@newbraunfelslaw.com

                         Court-appointed Appellate Counsel for Appellant


          CONDITIONAL REQUEST FOR ORAL ARGUMENT
                  IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1, Texas Rules of Appellate Procedure, the following is a list of
the parties and counsel:

Appellant:                      Matthew Jarrett Lee

Appellant’s counsel: Trial:     Michael Zamora, SBN: 24008327
                                211 Babcock
                                San Antonio, Texas 78201

                   Appellate: Frank B. Suhr,    SBN: 19466300
                              473 S. Seguin Ave., Suite 100
                              New Braunfels, Texas 78130
                              Tel: (830) 625-4345
                              Fax/Metro: (830) 606-4511
                              fsuhr@newbraunfelslaw.com

Appellee:                       The State of Texas

Appellee’s counsel:             Jennifer Tharp; Comal County Criminal District
                                Attorney’s Office

                   Trial:       Ryan Vickers,    SBN: 24079518
                                vicker@co.comal.tx.us

                   Trial:       Abigail Whitaker,         SBN: 24051915
                                whitta@co.comal.tx.us

                   Appellate: Joshua Presley,   SBN: 24088254
                              Preslj@co.comal.tx.us
                              150 N. Seguin Ave.
                              New Braunfels, Texas 78130
                              Tel: (830) 221-1300
                              Fax: (830) 608-2008




                                         -ii-
                                       TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT ON CONDITIONAL REQUEST FOR ORAL ARGUMENT.. . . vii

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AND AUTHORITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE PRESENTED NUMBER ONE:.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

        There Is Insufficient Evidence to Support the Jury’s Finding of
        Appellant Guilt for the Offense of Possession of Marijuana.

        A.       General Standard of Review for Sufficiency of the Evidence. . . . . . . 4

        B.       Charging Instrument and Applicable Law. . . . . . . . . . . . . . . . . . . . . . 5

        C.       Sufficiency - Possession of a Controlled Substance. . . . . . . . . . . . . . 6

        D.       Case on Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                 1.       Proximity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                 2.       Bloodshot eyes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


                                                        -iii-
                  3.        Nervousness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                  4.        Absence of Many Links. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                  5.        Number of Links Greater Against Driver. . . . . . . . . . . . . . 16

                  6.        Officer was Relying Primarily on Proximity.. . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                          -iv-
                                TABLE OF AUTHORITIES

Case Law:

Allen v. State, 249 S.W.3d 680 (Tex.App.–Austin 2008, no pet.). . . . . . . . 4-10, 12

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). . . . . . . . . . . . . . . . . . . . . 5

Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011). . . . . . . . . . . . . . . . . . . . . . . 4

Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App. 2000). . . . . . . . . . . . . . . . . 13

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007). . . . . . . . . . . . . . . . . . . . 4

Davis v. State, 947 S.W.2d 240 (Tex.Crim.App. 1997)(en banc). . . . . . . . . . . . . 15

Evans v. State, 202 S.W.3d 158 (Tex.Crim.App. 2006). . . . . . . . 6-8, 12-13, 15, 17

Fisher v. State, 851 SW2d 298 (Tex.Crim.App. 1993). . . . . . . . . . . . . . . . . . . . . . 5

Glass v. State, 681 S.W.2d 599 (Tex.Crim.App. 1984). . . . . . . . . . . . . . . . . . 14-15

Guevara v. State, 152 S.W.2d 45 (Tex.Crim.App. 2004).. . . . . . . . . . . . . . . . . . 4, 5

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 17

Montano v. State, 843 S.W.2d. 579 (Tex.Crim.App. 1992). . . . . . . . . . . . . . . . . . 15

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992). . . . . . . . . . . . . . . . 5

Olivarez v. State, 171 S.W.3d 283 (Tex.App.-Houston [14th Dist.]. . . . . . . . . . 7-8
2005, no pet.)

Padilla v. State, 326 S.W.3d 195 (Tex.Crim.App. 2010). . . . . . . . . . . . . . . . . . . . . 5

Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App. 2005). . . . . . . . . . . . . . . . 6, 7



                                                  -v-
Shams v. State, 195 S.W.3d 346 (Tex.App.–Austin 2006, pet. ref’d). . . . . . . . . . . 5

Whitworth v. State, 808 S.W.2d 566 (Tex.App.–Austin 1991, pet. ref’d). . . . . . . . 8

Williams v. State, 2010WL 2788819 (Tex. App.–Austin July 14, 2010).. . . . . . . 10
(Mem. Op.)(not designated for publication)

Statutes:

§481.002(38), Texas Health & Safety Code Ann. (West). . . . . . . . . . . . . . . . . . . . 6

§481.121, Tex. Health & Safety Code Ann. (West 2013). . . . . . . . . . . . . . . . . . . . 5

§6.01(b), Texas Penal Code Ann. (West 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.App.P. 9.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rule 39.1 Tex.R.App.Pro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii




                                                         -vi-
                          STATEMENT OF THE CASE

      Appellant was charged by information with the Class B misdemeanor offense

of possession of marijuana. (CR 12). Appellant tried his case as to guilt/innocence

to a jury (RR I 1) who found him guilty. (CR 46). The trial court assessed

punishment at 90 days confinement in county jail, probated for 12 months, $1,000

fine ($750 of which was probated), court costs (CR 52), a 6 month driver’s license

suspension (CR 54) and imposed other standard conditions of probation (CR 62).

 STATEMENT ON CONDITIONAL REQUEST FOR ORAL ARGUMENT

      Appellant believes oral argument in this case is unnecessary pursuant to Rule

39.1, Tex.R.App.Pro., as the dispositive issue has been authoritatively decided, the

legal arguments are, or will be, adequately presented in the briefs and record, and/or

the decisional process would not be significantly aided by oral argument. Rule

39.1(b), (c) & (d), Tex.R.App.Pro. However, if Appellee should request oral

argument and this Court grant Appellee’s request, Appellant respectfully requests the

opportunity to appear and argue.

                               ISSUE PRESENTED

      There is insufficient evidence to support the jury’s finding of Appellant’s guilt

of the offense of possession of marijuana.




                                         -vii-
                                STATEMENT OF FACTS

       Matthew Jarrett Lee (hereinafter referred to as “Appellant” or “Lee”) was

passenger in a vehicle heading southbound on IH 35 in Comal County, Texas. (RR

II 20-22). A two officer Sheriff’s patrol unit stopped the vehicle Appellant was riding

in for obstructed/expired dealer’s license plate. (RR II 21-22, 74). The video of the

subsequent stop and search was introduced into evidence. (Ex. 4).

       The vehicle was occupied by four people. (RR II 21-22). Appellant occupied

the backseat on the driver’s side of the vehicle. (RR II 21-22, 74). A male who

owned the vehicle was driving (hereinafter “Driver”) the vehicle. (RR II 21, 56, 74).

A female was in the front passenger seat (hereinafter “Passenger”). (RR II 21, 56,

74). Passenger’s infant that was three to four months old (hereinafter “Baby”) was

in a infant carrier in the back seat behind her. (RR II 21-22, 74).

       The officers had Driver exit the vehicle and spoke with him. (RR II 73; Ex 4,

2:091). Later the officers had Lee get out of the vehicle and sit on the ground in front

of the vehicle. (RR II 39, 85; Ex. 4 , 8:56). Lee was viewed as overly nervous by the

officers and had bloodshot eyes. (RR II 22-23, 26-27, 48, 75-78). Passenger stayed

inside the vehicle along with Baby for several minutes until Driver gave consent to


1. References to the videos introduced into evidence, Exhibit 4 (dash camera) and Exhibit 5
(backseat of patrol car camera), will be cited to an approximate minute : second reference like so:
(Ex. 4, 2:09).

                                                -1-
search the vehicle. (RR II 27, 50-51, 78-80, 122-123; Ex 4, 12:20[consent]).

      The officers started by searching Passenger’s bags. (Ex. 4, 13:00). Passenger

was then removed from the vehicle and searched (Ex. 4, 16:50 - 17:50) followed by

a search of Baby and the areas of the vehicle she occupied. (Ex. 4, 17:58-18:28).

Contraband in the form of marijuana was found on the rear passenger floorboard

under where Baby was in an infant carrier. (RR II 44, 83). The contraband was

found within a foot of Lee’s reach from where Lee had been earlier sitting on the

other side of the hump in the floorboard. (RR II 60-61, 86). The easiest person to be

able to reach the contraband was Lee. (RR II 87). The officers located no

paraphernalia either in the vehicle or on any person from the vehicle. (RR II 55, 130).

      It is undisputed that Lee was never seen to have the marijuana in his actual

possession nor was he observed attempting to dispose of it. (RR II 145, 130, 52).

The officers testified that Appellant’s proximity to the contraband, his nervous

behavior, and bloodshot eyes linked Appellant, and only Appellant, to the contraband.

(RR II 43-44, 55, 98-99, 109, 120, 126). Thus, Appellant was arrested for the Class

B misdemeanor offense of possession of marijuana.

      Appellant elected to try his case to a jury. The jury charge does not include

instructions or definitions relating to the law of parties. (CR 42-45). The jury found

Appellant guilty and the trial court assessed punishment of a probated sentence.

                                          -2-
                       SUMMARY OF THE ARGUMENT

      There was legally insufficient evidence to support the jury’s guilty verdict as

the evidence to link Appellant to the contraband merely consisted of mere proximity,

nervousness and bloodshot eyes.

      Nervousness should not be sufficient evidence of consciousness of guilt under

the law or the facts of this case. Moreover, the bloodshot eyes should not be

sufficient evidence of intoxication without any other sign of intoxication, no odor of

marijuana, no other person in the vehicle admitted Lee had ingested marijuana, and

no paraphernalia was found.

      This only leaves Lee’s proximity as the driver’s side rear passenger to

contraband found on the opposite floorboard under the infant carrier. That, without

more has consistently been held to be insufficient to link Lee to either knowledge of

the contraband or the possession thereof. Thus, this Court should reverse the

judgment of the trial court and an order of acquittal be entered.




                                         -3-
                        ARGUMENT AND AUTHORITY

ISSUE PRESENTED NUMBER ONE:

There Is Insufficient Evidence to Support the Jury’s Finding of Appellant’s
Guilt of the Offense of Possession of Marijuana.

A.    General Standard of Review for Sufficiency of the Evidence.

      The Due Process Clause of Fourteenth Amendment to the United States

Constitution requires that the State prove every element of the crime charged beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Byrd v. State,

336 S.W.3d 242, 246 (Tex.Crim.App. 2011); See also, Allen v. State, 249 S.W.3d

680, 688 (Tex.App.–Austin 2008, no pet.). When reviewing the sufficiency of the

evidence to support a conviction, all the evidence in the record that the jury was

permitted to consider must be reviewed, whether direct or circumstantial, properly or

improperly admitted, or submitted by the State or the defense. See Clayton v. State,

235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Allen, at 688-89. The standard of

review on appeal is the same for both direct and circumstantial evidence cases. Allen,

at 689, citing Guevara v. State, 152 S.W.2d 45, 49 (Tex.Crim.App. 2004)(other

citations omitted). The evidence is reviewed in the light most favorable to the verdict

and the reviewing court assumes that the trier of fact resolved conflicts in the

testimony, weighed the evidence, and drew reasonable inferences in a manner that


                                          -4-
supports the verdict. Jackson, 443 U.S. at 318; see also Shams v. State, 195 S.W.3d

346, 347 (Tex.App.–Austin 2006, pet. ref’d); Brooks v. State, 323 S.W.3d 893, 899

(Tex.Crim.App. 2010).

      When faced with a record of historical facts that supports conflicting

inferences, the reviewing court presumes that the trier of fact resolved any such

conflicts in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at

326; Padilla v. State, 326 S.W.3d 195, 200 (Tex.Crim.App. 2010).Ultimately, “[i]f,

based on all the evidence, a reasonably minded jury must necessarily entertain a

reasonable doubt of the defendant’s guilt, due process requires” the reviewing court

to reverse the case and order a judgment of acquittal. Allen, at 688, quoting Fisher

v. State, 851 SW2d 298, 302 (Tex.Crim.App. 1993) and Narvaiz v. State, 840 S.W.2d

415, 423 (Tex.Crim.App. 1992); Guevara, 152 S.W.3d at 49.

B.    Charging Instrument and Applicable Law

      Appellant was charged by information with the Class B misdemeanor offense

of Possession of Marijuana, under two ounces, pursuant to Section 481.121, Tex.

Health & Safety Code Ann. (West 2013): “... on or about 8th day of December, 2013,

in the County of Comal and State of Texas, Matthew Jarrett Lee, Defendant did then

and there intentionally or knowingly possess a usable quantity of marijuana, to-wit:

under 2 ounces ...” (CR 12). This appeal focuses on the sufficiency of the evidence

                                         -5-
as to the intentional or knowing possession of the contraband; to wit, marijuana.

      In possession of contraband cases, the State must prove that the accused

intentionally or knowingly exercised actual care, custody, control, or management

over the substance and that the accused knew the substance was contraband; in this

case, marijuana. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); Allen,

249 SW.3d at 690 (other citations omitted); see also §481.002(38), Texas Health &

Safety Code Ann. (West). “Possession is a voluntary act if the possessor obtains or

receives the thing possessed or is aware of his control of the thing for a sufficient

time to permit him to terminate his control.” Allen, at 689-690, citing §6.01(b), Texas

Penal Code Ann. (West 2003)(other citations omitted).

C.    Sufficiency - Possession of a Controlled Substance

      When, as in the case on review, “... an accused is not in exclusive possession

and control of the place where the contraband is found, it cannot be concluded or

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

there are additional independent facts and circumstances connecting or linking the

accused to the knowing possession of contraband.” Allen, 249 S.W.3d at 690, citing

Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005)(other citations

omitted). Regardless of whether there is direct or circumstantial evidence of

possession of the drugs, it must be established “... that the defendant’s connection

                                          -6-
with the drug was more than fortuitous.” Evans, at 161; see also Allen, at 691;

Poindexter, at 406. “This rule simply restates the common-sense notion that a person

- such as a father, son, spouse, roommate, or friend - may jointly possess property like

a house but not necessarily jointly possess the contraband found in that house.”

Allen, at 693 n. 13, citing Poindexter, at 406.

       Moreover, it is well settled that “[m]ere presence at the location where drugs

are found is insufficient by itself to establish possession of the contraband.” Allen,

249 S.W.3d at 691, citing Evans, 202 S.W.3d at 162 (other citations omitted).

“However, presence and proximity when combined with other evidence, direct or

circumstantial, may be sufficient to establish a knowing possession of contraband.”

Allen, at 691, citing Evans, at 162.

       The Texas Court of Criminal Appeals in Evans identified fourteen non-

exclusive factors2 that may link an accused to contraband in order to establish a

person's knowing possession of the contraband. Evans, at 162 n.12, citing Olivarez


2. “(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 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.” Evans, at 162 n.12.

                                                -7-
v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Evan’s

further stated that “[i]t is ... not the number of links that is dispositive, but rather the

logical force of all the evidence, direct and circumstantial.” Evans, at 162.

       This Court has held that the question of “whether the evidence is sufficient to

sustain a conviction for knowing possession of contraband must be answered on a

case by case basis.” Allen, at 702-703, citing Whitworth v. State, 808 S.W.2d 566,

569 (Tex.App.–Austin 1991, pet. ref’d). What matters is not the sheer number of

links, but rather the logical force of all the evidence, direct and circumstantial. Allen,

at 693(other citations omitted). The links “... must generate more than a strong

suspicion or mere probability of guilt.” Allen, 249 S.W.3d at 693 n. 13 (other

citations omitted).” As will be shown, the State never met that burden.

       This Court has two opinions which Appellant asserts are particularly

instructive which show the application of the above law to the facts of each case. In

Allen v. State, the Austin Police Department began surveillance of an apartment of a

man named Houston in anticipation of executing a search warrant about an hour later.

Allen, at 684. Allen was seen coming out of the apartment and returning on one

occasion. Id. Two separate persons went to the apartment and left after a few minutes

which the officers testified could be indicative of narcotic activity. Id. When the

search warrant was executed, Allen was seated on a couch in the living room with her

                                            -8-
infant and Mr. Houston’s child, those apparently being the only occupants of the

apartment. Id. A recently smoked marijuana roach was on the couch that made the

premises smell of marijuana. Id., at 684-685. At trial, Allen admitted to possession

of a marijuana roach in her cigarette pack. Id., at 687.

      A razor blade was on the bar between the living room and kitchen, another was

in one of Allen’s diaper bags, and a third was on a platter with baggies of cocaine on

top of the refrigerator. Id., at 684-685. Allen’s fingerprints were on the platter. Id.,

at 685. Under the kitchen sink, more cocaine and paraphernalia was found and in

another kitchen cabinet, even more cocaine was found. Id., at 684. In the dining area

near the kitchen, 134 grams of cocaine was found in a dog food bag. Id.

      This Court exhaustively went through the applicability of links relied upon by

the State to show knowledge and possession. Id., at 694-702. In the end, this Court

held that although the evidence tended to infer that Allen knew the cocaine was

present in the apartment, it did not show that she aware that she possessed the

cocaine, nor that she actually possessed it. Id., at 703. Even the fingerprint evidence

along with proximity was not enough to trump other factors which tended to not

establish knowing possession. Id., (other citation omitted). This Court noted that

evidence in a knowing possession of contraband case must amount to more than mere

conjecture. Id., at 704 (other citation omitted). This Court ultimately held that proof

                                          -9-
amounting to only a strong suspicion or mere probability of guilt is insufficient to

sustain a conviction. Id. (other citations omitted).

      The other case from this Court is Williams v. State, 2010WL 2788819 (Tex.

App.–Austin July 14, 2010)(Mem. Op.)(not designated for publication). There, the

State introduced evidence that Williams had the following links to the cocaine found

in a closet in her apartment: she lived in the apartment and was the sole tenant on the

lease; she refused to cooperate with police, resisted arrest and warned her brother and

his girlfriend the police were present; she knew both of her brothers were drug

dealers; she took money from her brothers even though she could not tell the jury of

legitimate employment one of them held; her other brother had previously been

arrested with drugs at her old apartment; and, the brother that was present was so

intoxicated she should have recognized that fact. Williams, Slip op., at 4.

      Significant to the case on review, it was held that in was unreasonable to infer

that William’s resisting arrest and calling out to warn her brother indicate a

consciousness of guilt relating to the drugs in the closet. Id., at 5. In reversing and

ordering an acquittal, this Court held that these facts were “legally insufficient to

establish beyond a reasonable doubt that Serena knowingly exercised control over the

drugs in her closet.” Id., at 5.




                                         -10-
D.    Case on Review.

      In the case on review, Lee was charged as the only principal to the crime. The

jury charge does not include any instructions or definitions as to the law of parties.

(CR 42-45). The only support for Lee’s conviction is proximity, bloodshot eyes and

his nervous demeanor. (RR II 43-44, 55, 98-99, 109, 120, 126). In fact, the arresting

officer agreed that Lee was singled out because he was in the back seat ,with red eyes

and his nervous demeanor. (RR II 126).

      1.     Proximity

      Lee was removed from the vehicle at about the 8:00 mark of the recording of

the traffic stop. (Ex 4, 8:00). This left Passenger alone in the vehicle with Baby until

10:50 when the arresting officer talks to her for a few minutes. (Ex. 4, 10:50). She

is then left in the car again from 12:00 until 12:56 while the arresting officer obtains

consent to search from Driver. The search begins at 13:00. At 17:58 the arresting

officer starts searching the area occupied by Baby in the back seat. At 18:28 the

small baggie of marijuana is found. Thus, there were several instances evident on the

video where Passenger could have dropped the contraband in the backseat area where

it was eventually found. In any event, the contraband was found in a place that Lee

had not been near for 10 minutes and that area was occupied by others during that

time. Logically, that should weaken the effect of this link.

                                          -11-
       Even conceding the proximity of where Lee was sitting 10 minutes earlier to

the location the contraband was eventually found was closer than any other adult from

the vehicle, those facts alone are insufficient to establish either possession of the

contraband or the element of knowledge of the contraband. See Allen, 249 S.W.3d

at 695. As stated above, proximity, without more, is insufficient to establish

possession of contraband. Evans, 202 S.W.3d at 161.

       2.      Bloodshot eyes

       Both officers testified that Lee had bloodshot eyes. (RR II 41-42, 55, 109,

120). Presumably this is evidence of link #4 from Evans; whether the defendant was

under the influence of narcotics when arrested.

       Although the officers’ testified Lee’s eyes were bloodshot, that fact is not

noticeable on the video of Lee in the back of the patrol car going to jail where his

eyes are clearly visible and do not appear to be bloodshot. (RR II 120-121, Ex 53 [in

total, but specifically, 36:40, 38:30, 43:05, 44:20; 49:03]). The arresting officer first

admits that you cannot really tell if Lee’s eyes are bloodshot on the video, then claims

to be able to tell that Lee’s eyes are bloodshot on the video. (RR II 121). If the Court



3. To save the Court and opposing counsel time, the first 35 minutes of Ex. 5 is merely video of
an empty backseat of the patrol unit. You can hear the audio portion of what Ex. 4 shows, but it
has little other use. Lee first gets into the backseat of the patrol unit at 35:33. As the camera is
close to Lee’s face, his eye whites can be seen.

                                                -12-
agrees with the officers that Lee’s eyes are obviously bloodshot, this paragraph of this

brief should be ignored. However, if the videotape provides indisputable evidence

contradicting the officers testimony, this Court should not be bound to accept the

testimony. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex.Crim.App. 2000).

      Moreover, other than bloodshot eyes, there were no other signs of marijuana

use noted by the assisting officer. (RR II 26-27). There was no odor of marijuana

present and no paraphernalia was found. (RR II 54-55). The arresting officer even

conceded that red eyes could be alcohol consumption, allergies and irritants. (RR II

42-43). Surely it is not logical to assume everyone with bloodshot eyes is under the

influence of marijuana without a shred of other evidence. At best, this is but an

equivocal link of being under the influence of marijuana, but does not rise to the level

to establish knowledge or possession of marijuana.

      3.     Nervousness

      Both officers testified that Lee was nervous. (RR II 41-42, 57, 75-76).

Presumably this is evidence of link #14 from Evans; whether the conduct of the

defendant indicated a consciousness of guilt. The testimony and video of the stop

establish the following regarding Lee’s nervousness. The arresting officer first

addressed Lee by pointing out that he was not wearing a safety belt. (Ex. 4, 2:09).

Shortly thereafter, the arresting officer opens Lee’s door and asks Lee not to get out

                                          -13-
of the vehicle. (Ex 4, 2:32). After talking with Driver for a while, the arresting

officer goes back to talk to Lee. (Ex. 4, 5:50).

      Immediately, the arresting officer asks Lee why he has two phones. (Ex. 4,

5:55). Lee’s explanation is not particularly nervous. (Ex. 4, 5:58). The arresting

officer then tells Lee before getting out of the vehicle the officer would like to not

have to see Lee’s underwear and telling him it is a sign of respect. (Ex. 4, 6:05).

Initially, Lee response by saving “Okay, that’s fine, I will pull my pants up for you”

(Ex. 4, 6:08), but as the officer keeps talking about respect, he clearly becomes more

nervous (Ex. 4, 6:15). If Lee was not nervous enough, after being sat on the curb at

the front of the vehicle he is instructed that if he got up it would be found to be an act

of aggression against the officer. (Ex. 4, 10:21). At this point the officer’s contact

with Lee is over until after the search. This clearly shows the logical context in

which Lee was nervous as opposed to some consciousness of guilt.

      Assuming without conceding that the evidence on the video establishes that

Lee’s conduct was overly nervous, it still does not constitute evidence of

consciousness of guilt. The Texas Court of Criminal Appeals has stated:

      We pause to point out that Rodriguez never amplified on why he
      thought the passenger appeared to him to be "nervous." We believe that
      in this day and time that when a citizen is suddenly facing an imminent
      confrontation with police officers for unknown reasons, most citizens
      with nothing to hide will nevertheless manifest an understandable

                                           -14-
      nervousness in the presence of the officer. Not only the guilty, but the
      not guilty as well, will react much the same as the outside passenger did
      in this instance, i.e., exercising a natural impulse. Thus, the appearance
      of being nervous is as consistent with a person being guilty of having
      committed or preparing to commit a criminal wrong as with a person not
      being guilty of anything more than being in the wrong place at the
      wrong time.

Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984)(other citation omitted);

see also Davis v. State, 947 S.W.2d 240, 248 (Tex.Crim.App. 1997)(en banc) citing

Montano v. State, 843 S.W.2d. 579, 582 (Tex.Crim.App. 1992). The arresting officer

even admitted that there could be reasons to be nervous other than consciousness of

guilt. (RR II 41) and that it is not a crime to be nervous when interacting with a

police officer (RR II 122).

      Lee’s nervousness does not logically establish that he either knew of or

possessed the contraband. At best, it is a mere suspicion of such act.

      4.     Absence of Many Links

      While not dispositive, many of the Evans links had either no evidence to

support their existence or there is evidence that negated their existence. Specifically,

Lee: made no incriminating statements; did not attempt to flee; and, was not found

with a large amount of cash. There was no odor of marijuana (RR II 54), no other

contraband or paraphernalia was found (RR II 55, 130), Lee did not make furtive

gestures (RR II 116), he did not throw, hide or dispose of anything (RR II 52, 59,

                                          -15-
145) and Lee did not own the vehicle (RR II 56). Moreover, the other occupants of

the vehicle did not admitted that Lee had ingested marijuana. (Ex. 4, 25:00). Lastly,

neither officer ever saw Lee possess the marijuana. (RR II 47-48, 145). The logical

force of the absence of these links, and in some cases the direct evidence of the

negation of the links, does not lead one to the conclusion that either Lee had

knowledge of the contraband, or possessed it.

      5.     Number of Links Greater Against Driver

      Driver owned and operated the vehicle. (RR II 56). Driver took evasive action

to avoid getting in front of the police officers. (RR II 71). Driver was on parole or

probation for a drug offense. (RR II 25, 49, 57, 125). Driver was so nervous and

agitated after the contraband was found, the assisting officer has to tell him to calm

down, not get worked up and to not do anything silly. (Ex. 4, 23:10 -23:45). The

logical force of this evidence is greater than Lee, and logically goes against the

conclusion that Lee knew and possessed the contraband as a principal.

      6.     Officer was Relying Primarily on Proximity

      Interestingly, the arresting officer states that if the facts where all the same but

the contraband was found in the console, only Driver would have been arrested and

he could not have put the case on Lee. (RR II 101-102). Thus, according to the

arresting officer, merely moving the location the contraband was found one foot,

                                          -16-
combined with Driver’s ownership and control of the vehicle, would preclude Lee

from being in possession even with bloodshot eyes and an overly nervous demeanor.

However, since the contraband was found a foot away on the floorboard under the

infant carriage, then the only person in possession is Lee, in spite of Driver still

owning and operating the vehicle and all of his links set forth above. What is clear

about that belief of the arresting officer is that proximity trumps all other evidence.

Fortunately, the law cited above does not support that proposition.

                                  CONCLUSION

      Viewing all the evidence in the light most favorable to the State, the logical

force of the combined pieces of circumstantial evidence in this case, together with

reasonable inferences from them, could not lead a rational jury to determine that Lee

exercised care, custody, control, or management of the marijuana found on the floor

of the other side of the vehicle, under the baby’s car carrier and that he knew the

small bag of marijuana was contraband. See Evans, 202 S.W.3d at 162. Accordingly,

the evidence was insufficient to support Lee's conviction for possession of marijuana.

See Jackson, 443 U.S. at 318-19

      Proximity alone is insufficient to show knowledge or possession of contraband.

To evade that well-established rule of law, the arresting officers claim Appellant’s

nervous disposition and bloodshot eyes are the additional links necessary to support

                                         -17-
the jury’s finding of guilt to the offense of possession of marijuana. As is set forth

above, without more, those links fail to establish either that Lee had knowledge of the

marijuana or possessed it.

      For the above reasons, Appellant’s issue presented should be granted and the

judgment of the trial court should be reversed and a judgment of acquittal ordered.

                                      PRAYER

      Appellee prays that this Honorable Court sustain Appellant’s sole issue

presented, reverse the judgment of the trial court and enter a judgment of acquittal.

      Appellee prays for such other relief as he may be entitled.

                                        Respectfully submitted,



                                          /s/ Frank B. Suhr
                                        Frank B. Suhr
                                        THE LAW OFFICES OF FRANK B. SUHR
                                        State Bar No. 19466300
                                        473 S. Seguin Ave., Suite 100
                                        New Braunfels, Texas 78130
                                        Tel: (830) 625-4345 / Fax: (830) 606-4511

                                        Court-appointed Attorney for Appellant




                                         -18-
                          CERTIFICATE OF SERVICE

        I certify that a true copy of the above was served on the Office of the Comal

County Criminal District Attorney and the Clerk of the Third Court of Appeals via

e-service in accordance with the Texas Rules of Appellate Procedure on May 26,

2015.



                                        /s/ Frank B. Suhr
                                        Frank B. Suhr, Attorney for Appellee


                       CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements of Tex.R.App.P. 9.4(e)

having been prepared in a conventional typeface no smaller than 14-point for text and

12-point for footnotes. This document also complies with the word-count limitations

of Tex.R.App.P.9.4(i), because it contains 4526 words, excluding any parts exempted

thereby.


                                        /s/ Frank B. Suhr
                                        Frank B. Suhr




                                         -19-
