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

DISSENTING 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 within 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 to 
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the 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.

The Texas Court of Criminal Appeals has held a list of factors can support 

juries’ findings that defendants knowingly possessed drugs when they were not in 

exclusive possession of the place where said drugs were found; the absence of any 

given factor (or even all 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 requisite “affirmative links” test, the 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 heroin;

• The 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 the vehicle because 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 affirmative links to justify a conviction, and (2) illustrate 

that despite clearly established jurisprudence concerning the right to remain free 
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from unreasonable seizures and convictions, some prosecutors, courts, and juries

remain prepared to seek, sustain, and assess 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 insufficient, 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.] 1979). 

First, the majority importantly cites Robinson v. State, 174 S.W.3d 320, 326 

(Tex. App—Houston [1st Dist.] 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 exercised 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 Villarreal 

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 factory 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 

shirt was stuffed in the opening,” and (4) appellant had keys to the truck. 

Robinson, 174 S.W.3d at 326-27. The drugs therein were “conveniently 

accessible”. The instant case is devoid of comparable facts and the drugs here

were therefore not “conveniently accessible” under Texas law. 

Second, the majority relies on testimony that the trunk could be opened from 

the inside, thereby enabling Appellant to “access the drugs without a key”. This 
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proposition as an “affirmative link” is uncited and effectively announces a new 

rule: without more, any passenger 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 contraband to justify a criminal conviction. I cannot agree therewith. 

Third, there is simply no evidence that could enable 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); therefore, there 

is zero evidence capable of sustaining 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 not “easily accessible while in the vehicle.” See 

Robinson, 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 thereto. 

Fourth, “[i]t has been many times held that 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. 

Crim. 558, 560, 27 S.W.2d 186 (1930) (emphasis added) (citing Branch’s P. C. 

§681; 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 evidence, 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.3d 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. 
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App. 2005) (emphasis added), abrogated on other grounds by Robinson v. State, 

466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) (citing United States v. 

Phillips, 496 F.2d 1395, 1397-99 (5th Cir. 1974) (“Proof of mere proximity to 

contraband is not sufficient to establish actual constructive 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 facts in this case tending to establish exclusive possession 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) owned the vehicle; 

(2) was driving the vehicle; 

(3) was asked for permission to search the vehicle (because he was not in 

control of it); 

(4) possessed 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 incriminating statements; 

(8) made furtive gestures; 

(9) was under the influence of any drugs;

(10) was found in proximity to any drugs inside the vehicle (excluding the 

trunk); and

(11) was found in proximity to any paraphernalia for using contraband

inside the vehicle. 

See generally 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.—
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Beaumont 1996, no pet.)). In Dixon, the court found the evidence was insufficient 

to sustain the conviction because there was no evidence the defendant had actual

care, custody, control, or management over the contraband. 918 S.W.2d at 682; 

see also Moreno v. State, 821 S.W.2d 344, 352 (Tex. App.—Waco 1991, pet. 

ref’d) (insufficient links to connect passenger to cocaine found under the hood of 

the vehicle (despite the fact that he had cocaine in his wallet) when he (1) was not 

connected with the ownership 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 illegal drug; and, (6) the odor of an illegal drug was not 

present in or around the vehicle); Humason v. State, 699 S.W.2d 922, 923 (Tex. 

App.—Houston [1st Dist.] 1985) (insufficient links when (1) driver was the truck’s 

sole occupant and (2) the bag with drugs “was unzipped and close to appellant, 

thus suggesting that he had immediate access 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 

(insufficient links where appellant was effectively a non-owner 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 to a search, the trunk was locked, the odor of the contraband was “not 

detected until [the officer] opened the trunk,” there was “no evidence of appellant 

being present when the trunk was opened prior to [the officer’s] search, and no 

paraphernalia was “found on appellant or in his luggage”). 

Employing the legal sufficiency standard of review and viewing the 

“affirmative links” in the light most favorable to the prosecution, the majority 

erroneously holds the evidence 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 Appellant in such a manner and to such an extent that a 
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reasonable inference may arise that he (1) knew of the contraband’s existence or 

(2) exercised any control over it. Additionally, the narcotics officer testified he did 

not examine or download any data from Appellant’s phone and could not thereby 

link him (even circumstantially) to the confidential informant or the drugs; here, 

the absence of such evidence plainly demonstrates its unavailability, unreliability,

or irrelevance. Finally, there was conflicting testimony at trial between the two 

testifying officers (the narcotics officer and the traffic patrolman) about the type of 

car carrying the contraband. That testimony was never reconciled and cannot 

sustain this conviction under these circumstances. 

Simply put, the evidence of Appellant’s guilt is (1) his mere presence in a 

car with an unlockable trunk containing 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 the 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 

affirmatively link the accused 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 the solemn 

obligation to vindicate guaranteed Due Process protections. See generally 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 

evidence, or merely a ‘modicum’ of evidence, probative of an element of the 

offense.” Garcia v. State, 367 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 deference to the factfinder’s role, we will 

uphold the verdict unless a rational factfinder must have had reasonable doubt as to 
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any essential element.”)). Regardless of whether Appellant committed a crime, we 

are duty-bound to ensure the State proves he did so beyond a reasonable doubt in a 

manner that comports with our shared, agreed-upon, and fundamental principles of 

justice. The State failed to do so and Appellant’s conviction should therefore be 

vacated. 

 /s/ Meagan Hassan

 Justice

Panel consists of Justices Wise, Jewell, and Hassan. (J., Jewell, majority). 

Publish — Tex. R. App. P. 47.2(b).