Affirmed and Majority Opinion and Dissenting Opinion filed September 24 , 2019
.

In The 

## Fourteenth Court of Appeals

NO. 14
- 18
- 00504
- CR

MANUEL ESPINO
- CRUZ , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1531630

D ISSENTING OPINION
The instant case lacks (1) the necessary “ affirmative links ” between Appellant and the drugs , and (2) sufficiently just reasons to authorize our courts to convict Appellant for merely being with i n some unidentified proximity to contraband. I am therefore obliged to dissent from the majority ’ s affirmation of the jury ’ s verdict and would vacate Appellant’s conviction

. The majority correctly identifies the applicable standard but misapplies it to2 th e facts. Even when the facts are viewed in the light most favorable to the jury ’ s verdict, there is no evidence tending to establish Appellant knowingly possessed the drugs (or even knew they were present), much less that he intended to sell them. Th e Te x as Court of Criminal Appeals has held a list of factors can support juries’ findings that defendants knowingly possessed drugs whe n they were not in exclusive possession of the place where said drugs were found; the absence of any given factor (or even al l remaining factors together) , however, is not exculpatory

. See James v. State , 264 S.W.3d 215, 219 (Tex. App.

— Houston [1st Dist.] 2008, pet. ref’d) (citing Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976))

. To satisfy the requis ite “affirm ative links” test, t he majority rests its conclusion on the following:

• Appellant was found in a suspicious place under suspicious circumstances;

• Appellant was riding in the Fusion ’ s front passenger seat when officers conducted the search and found the he roin;

• T he officer immediately smelled a strong odor of heroin ( after opening the trunk );

• There was a large amount of heroin discovered;

• The drugs were found in the trunk of the car, which is an enclosed space and was accessible within th e vehicle becaus e the trunk latch could be accessed from inside the vehicle ; and

• Appellant was found with a phone in his hand when he was detained

. These factors (both individually and collectively) (1) are incapable of establishing constitutionally sufficient affirma ti ve link s to justify a conviction , and (2) illustrate that despite clearly established jurisprudence concerning the right to remain free3 from unreasonable seizures and convictions, some prosecutors, courts , and juries remain prepared to see k , sustai n, and a ssess criminal convictions based on mere proximity to contraband combined with other irrelevant “evidence” of guilt. See generally Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) (“Mere presence at the location where drugs are found is insuffi c ient, by itself, to establish actual care, custody, or control of those drugs.”); see also Waldon v. State , 579 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1 979). First, t he majority importantly cites Robinson v. State , 174 S.W.3d 320, 326 (Tex. App

— Hou ston [1st D i st.] 2005, pet. ref’d ) ( “ The term ‘ conveniently accessible ’ means that the contraband must be within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest that the accused had knowledge of the contraband and exercis e d control over it. ”) (emphasis added) (citing Rhyne v. State , 620 S.W.2d 599, 601 (Tex. Crim. App. [Panel Op.] 1981) and Deshong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)); see also Tate v. State , 463 S.W.3d 272 , 280 n. 5 (Tex. App.

— Fort Worth 2015 ),

rev ’ d on other grounds , 500 S.W.3d 410 (Tex. Crim. App. 2016) and Villa r real Lopez v. State , 267 S.W.3d 85, 93 n.24 (Tex. App.

— Corpus Christi 2008, no pet.)

. In Robinson , (1) appellant was seated in the front passenger seat, ( 2) “ [t]he cocaine was discovered in a fac tory compartment located in the back wall of the truck , which could be seen and accessed only by folding down the truck ’ s back seat, ” (3) said compartment was “ unlocked and unable to be closed completely because a

s hirt was stuffed in the opening, ” and (4) app e llant had keys to the truck. Robinson , 174 S.W. 3d at 326

- 27. T he drugs therein were “conveniently accessible”

. The instant case is devoid of comparable facts and the drugs here were therefore not “convenien tly accessible” under Texas law. Seco nd, th e majority relies on testimony that the trunk could be opened from the inside, thereby enabling Appellant to “access the drugs without a key”. T his4 proposition as an “affirmative link” is uncited and effectively announces a new rule: without more, a ny pa s senger in Texas in a car carrying contraband in a trunk not protected by a lockable (and locked) internal trunk release is now sufficiently linked to said contr aband to justify a criminal conviction

. I cannot agree therewith. Third , there is simpl y no e vidence that could enabl e a jury to find Appellant ever touched, opened, or even looked at (1) any relevant item, (2) the trunk release , or (3) the trunk (much less inside the trunk or any object therein); ther efore, there is zero evidence capable of sust a ining Appellant’s conviction. Moreover, there is no evidence Appellant had the ability to access the trunk (1) from the passenger seat, (2) from the inside of the vehicle, or (3) while the vehicle was moving; therefore, the drugs were no t “easily access i ble while in the vehicle .” See R obinson , 174 S.W.3d at 326 (emphasis added). These facts preclude a finding that the drugs were “conveniently accessible” and are insufficient to affirmatively link Appellant t hereto. Fourth, “[i] t has been ma ny times held t hat the mere presence of an accused at the time and place of the commission of an offense, in the absence of proof of an agreement to commit it, does not render him guilty. ” De Grace v. State , 115 Tex. Cri m. 558, 560, 27 S.W.2d 186 ( 1930 ) ( emphasis added ) (citing Branch ’ s P. C. § 68 1; Golden v. State , 18 Tex. Ct. App. 639 (1885) ; Jackson v. State , 20 Tex. Ct. App. 192 (1886) ; Elliott v. State , 109 Tex. Crim. 270 (1928) , and “ authorities there cited.”). “[P] resence or proximity, when combined with other e vi dence , either direct or circumstantial (e.g., ‘links’), may well be sufficient to establish that element beyond a reasonable doubt.” Black v. State , 411 S.W.3d 25, 28 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) (emphasis added) (citing Evans , 202 S .W.3 d at 161

- 62)

. “ This ‘ affirmative links rule ’ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else ’ s drugs. ” Poindexter v. State , 153 S.W .3d 402, 406 (Tex. Crim.5 App. 2005) (emphasis ad de d) , abrogat ed on other grounds by Robinson v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) (c iting United States v. Phillips , 496 F.2d 1395, 1397

- 99 (5th Cir. 1974) ( “P roof of mere proximity to contraband is not sufficient to establish actual c onstructive possession or the element of knowledge ” ; distinguishing the “ non
- explaining possessor ” from the

“ incredible non

- possessor ”, and concluding that evidence was sufficient because

“ [t]here are no fa cts in this case tending to establish exclusive po ssession and knowledge by [co

- defendant] ”)). Our sister courts have issued opinions clarifying the strength of purported affirmative links when there is no evidence a defendant ( e.g., ): (1) own ed the vehicle ; (2) w as driving the vehicle; (3) was asked for permissio n to search the vehicle ( because he was not in control of it ) ; (4) possess ed any of the trunk’s contents ; (5) had fingerprints on any relevant item or on anything in the trunk; (6) attempted to flee; (7) made incriminatin g statements ; (8) made furtive gestures; (9) was under th e influence of any drugs; (10) was found in proximity to any drugs in side th e vehicle (excluding the
tru nk) ; and (11) was found in proximity to any paraphernalia for using contraband inside the vehicle

. See generall y Jenkins v. State , 76 S.W.3d 709 , 716 (Tex. App .— Corpus Christi 2002 , pet. ref’d ) (summarizing Dixon v. State , 918 S.W.2d 678, 679 (Tex. App.

—6 Beaumont 1996, no pet.))

. In Dixon , the court found the evidence was insufficient to sustain the conviction because there was no evidence the defend ant had actu al care, custody, control , or management over the contraba nd

. 918 S.W.2d at 682; see al so Moreno v. State , 821 S.W.2d 344, 352 (Tex. App.

— Waco 1991, pet. ref’ d) (insufficient links to connect passenger to co caine found under the hood of the vehicle ( despite the fact that he had cocaine in his wallet ) whe n he (1) was not connected with the ow nership or control of the car; (2) made no furtive gestures; (3) did not attempt to escape; (4) made no incriminating statements; (5) was not under the influence of an il legal drug; and, (6) the odor of an illegal drug was not present in or around the vehi cle) ; Humason v. State , 699 S.W.2d 922, 923 (Tex. App.

— Houston [1st Dist.] 1985) (insufficient links whe n (1) driver was the truck’s sole occupant and (2) the bag with dr ugs “was unzipped and close to appellant,
t hus suggesting that he had immediate acces s to the contents of the bag ”), aff’d, 728 S.W.2d 363 (Tex. Crim. App. 1987); and Jenkins , 76 S.W.3d at 717

- 18 (insuffici ent links where appell ant was effectively a non -o wner and unintoxicated passenger who did not attempt to flee and made no furtive gestures, a “large” quantity of drugs were “secreted” in the trunk (not in plain view), the owner consented t o a search, the t runk was locked, the odor of the contraband was “ not detected until [the officer] opened the trunk,” there was “no evidence of appella nt being present when the trunk was opened prior to [the officer’s] search, and no paraphernalia was “found on appellant or in his luggage”)

. E mploying the legal suffici ency standard of review and viewing the

“ affirmative links ” in the light most favorable to the prosecution, the majority erroneously holds the ev idence is sufficient to sustain a conviction for possession of contraband. When the evidence here is viewed in that same light, it is plainly insufficient to prove Appellant’s intent to distribute same and does not sufficiently link the contraband to Ap pe llant in such a manner and to such an extent that a7 reasonable inference may arise that he (1) knew of the cont raband’s existence or (2) exercised any control over it. Additionally, the narcotics officer testified he did not examine or download any data f rom Appellant’s phone and could not thereby link him (even circumstantially) to the confidential informant or t he drugs; here, the absence of such evidence plainly demonstrates its unavailability , unreliability, or irrelevance

. Finally , there was confli ct ing testimony at trial between the two testifying officers (th e narcotics officer a nd the traffic patrolman) ab out the type of

car carrying the contraband. That testimony was never reconciled and cannot sustain this conviction under the se circumstances. Simply put, the evidence of Appellant’s guilt is (1) his mere presence in a car wit h an unlockable trunk contai ning contraband and (2) a cell phone that was never connected to the confidential informant

. See Jenkins , 76 S.W.3d at 719 n. 13 (“To accept th e State ’ s argument would permit a single factor indicating guilt to trump any number of other factors which did not tend to establish possession. But that is not our law; the determination of whether the evidence is sufficient to affirmative ly link the acc us ed to the contraband must be made not by applying some rigid algebraic formula, but on a case by case basis.” ) (citing Whitworth v. State , 808 S.W.2d 566, 569 (Tex. App.

— Austin 1991, pet. ref’d )). As an intermediate appellate court, we are entrusted with t he solemn obligation to vindicate guaranteed Due Process prote ctions. See generall y Griffin v. State , 614 S.W. 2d 155 (Tex. Crim. App. [Panel Op. ] 1981); see also Tex. Const. art. V §6(a). In this case, we have failed to do so because “the record contains no eviden ce , or merely a ‘modicum’ of evidence, probative of an element of the offense.” Garci a v. State , 36 7 S.W.3d 683, 687 (Tex. Crim. App. 2012) ( quoting Jackson , 443 U.S. 307 , 320 (1979 ), and Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009) (“After giving proper d eference to the factfinder ’ s role, we wil l uphold the verdict unless a rational factf inder must have had reasonable doubt as to8 any essential element.”) )

. Regardless of whether Appellant committed a crime, we are duty

- bound to ensure the State proves he d id so beyond a reasonable doubt in a

mann er that comports with our shared , agreed

- upo n, and fundamenta l principles of justice. The State failed to do so and Appellant’s conviction should therefore be vacated.

/s/ Meag an Hassan Justice

Panel consists o f Justices Wise , Jewell , a nd Hassan . (J ., Jewell, majority ).
Publish — Tex. R. App. P. 47.2(b).