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 

75TH 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 

 SBOT # 24072501 

 ATTORNEY FOR PETITIONER 

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

CLERK
2

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
3

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
4

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
5

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

75TH District Court of Liberty County, Texas and

the Court of Appeals for the 14

TH 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
6

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. 
7

(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 
8

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 
9

(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 
10

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 
11

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
12

APPENDIX
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