## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00112

- CR

___________________________

On Appeal from County Criminal Court No. 4

Denton County, Texas Trial Court No. CR

- 2 017

- 02661

- D
Before Gabriel, Pittman, and Bassel, JJ. Memorandum Opinion by Justice Pittman 

### A ERRON 

### D OWDY 

### , Appellant

V


### . The State of Texas2 MEMORANDUM OPINION Appellant Aerron Dowdy appeals from his conviction for p ossess ion of more than two but less than four ounces of marijuana . Police officers arre sted Appellan t because he was in a car in which marijuana was found. They stopped the car in which he was a passenger because he was black and was wearing a white t

- shirt and because

e arlier that evening officers had unsuccessfully attempted to stop a dif ferent, physi cally

- dissimilar black male who was also wearing a white t

- shirt, for suspected possession of marijuana. At the conclusion of Appellant ’ s trial, the jury foreman orally pronounced a verd ict of guilty, but the trial court accepted the verdict form unsigned

. In three issues, Appellant argues (1) that the jury did not render a verdict, (2) that the evidence was insufficient to support a guilty finding, and (3) that the trial

court ’ s errors a re either harmful or not subject to a harmless error rev iew

. Because
we sustain Appellant ’ s challenge to the sufficiency of the evidence to support the verdict, we reverse the trial court ’ s judgment and render a judgment of acquittal.
B ACKGROUND At trial, t he State called two police officers with the Universit y of North Te xas police department : Corporal Pete Uranga and Officer Cory Lane

. Corporal Uranga testified that on February 7, 2017, he was working the night
shift. He started the even ing working on bike patrol around 6:00 p.m. As he was
leav ing the police station on his bike, Officer Lane was also leaving the station but3

was driving a police vehicle. The two stopped at the intersection of Kendolph Street and Eagle Drive. A white Impala stopped at the int ersection and tur ned south onto Kendolph, and as the Impala pa ssed the officers, they both noticed the smell of marijuana coming from its window

. Lane also noticed that the Impala ’ s registration had expired. Corporal Uranga made a u

- turn to f ollow the Impala. The car turned into a grocery store parking lot and pul led into a parking space. Corporal Uranga pulled up behind the vehicle on his bicycle, turning on his bike ’ s flashing lights as he did so. As
he was about to dismount his bike, the Impala “ took off. ” Corporal Uranga radioed that the Impala had left a nd began pursuing the vehicle. Officer Lane had pulled into the parking lot to assist Corporal Uranga with the stop, and he too pu rsued the Impala. When the Impala did not stop, Lane had to

“ stand down ” because department policy discourages pursuit of ve hicles except when the pursued person has committed a “ known felony. ” However, anoth er officer
heard the call over the radio, saw the vehicle, and followed it until it stopped at the Arbor Apartments. That officer vaguely described the driver as a black male wearing
a white t

- shirt, and Corporal Uranga described him the same wa y. The officer s tated
over the radio that he had the Impala ’ s two passengers but that the driver had fled the

scene. Lane arrived at the scene and participated in the search of the Impala. He found an envelope with a local addre ss of 707 Bernard , Apartment 12 , at a nearby4

apartment complex

. Corporal Uranga biked to that address in case the driver returned home after fleeing the stop. Corporal Uranga saw three white males sta ndi ng outside Apartment 12 , and as he ap proached them, one of the men stayed, another one ( also wearing a white t

- shirt) ran off, and the third walked away. Another officer stopped the one who had run
away , and after questioning the men , the officers deci ded t hat the men wer e waiting to buy marijuana from someone who lived in Apartment 12. Nevertheless , the officers let the men go because they “ had nothing on them. ” 1 Corporal Uranga decided to surveil Apartment 12 from a hilly area to see if the
occupan t r eturned. He could see the doors of neighboring apartments, but a six

- foot brick wall , which separated the apartment buildings from the parking lot, blocked his view of the door to Apartment 12

. At some point, he s aw a black male in a white t

shirt com ing from th e area around the brick wall into the parking lot . Corporal Uranga testified at trial that he did not see the man come out of Apartment 12 and did
not see where he came from but that he could at least say t hat the man did not come from one of t he neighboring apartments to Apartment 12 because he could see those
doors. Corporal Uranga left his surveillance spot and went into the parking lot but in doing so lost sight of the man. The a partment complex sits between two roads

1 See generally R

ivas v. State , 787 S.W.2d 229, 233 (Tex. App.

— Corpus Christi 1990, pe t. ref

’ d) (discussing what the state must show to prove the offense of attempted possession of a contr olle d substance).5

running east

- west, an d its parking lot has entrances on both its north and south side, providing access to both roads. Corporal Uranga headed toward the street on the north side of the parking lot to look for the man and , after failing to find him, wen t back into the parki ng lot. As he did so, he saw a maroon Hyundai back out of a parking space and drive toward him. He had not seen the car from where he had been watching Apartment 12 although he had passed its parking space w hen he had
gone toward the street

. A woman dro ve the car, and a black man in a white t

- shirt was in the front passenger seat

. The man was later identified as Appel lant. However, Corporal Uranga could not say if Appellant was the man he had seen going into the parking lot b ecause he had seen that man on ly from a distance. As the car drove past Corporal Uranga, he shined his flashlight on the c ar and
said , “ [H] old up, ” but the driver did not stop. Corporal Uranga did not detect any odor of marijuana as the car passed him , but the car ’ s windows were u p . Corporal Uranga tried but was unable to activate his bike ’ s flashing l ights. At trial, he testified
that he believed that the driver was evading him. However, he further sta ted that
because it was da rk outside , h e was not sure if the driver saw his u nif orm to know that he was a police officer or if she was aware that he was attempting to detain her

. Corporal Uranga followed the car on his bike. Officer Lane was on his way to the scene because Corporal Uranga had report ed that he had seen a black m ale leaving6

Apartment 12. 2 After Corporal Uranga reported that the Hyundai ’ s driver had turned left at a stop sign without stopping, Officer Lane caught up to the car and turned on his flashing lights to stop it. When the car stopped, officers ordered th e d river and
pa ssenger to put their hands out their respective windows. The car ’ s occupants complied; Officer Lane did not see Appellant’s hands go b ack into the vehicle at any point before being ordered out of the car

. Corporal Uranga caught up to the sto p ped car as the driver and passenger were following the officers ’ instructions to get out of the car . Corporal Uranga had not
seen the fac e of the Impala ’ s driver, but Officer Lane had seen enough of him to know that the Impala ’ s drive r had an A fro

— App ell ant was bald

— and was noticeably shorter than Appellant and thus to know that Appellant was not the Impala ’ s driver

. This was later confirmed after a search warrant was executed on Apartment 12. At trial, Corporal Uranga admitted that Appellant and the Im pala ’ s driver did not look
alike. But he asserted that the person he saw coming from around the wall near Apartment 12

—

who he could not identify as Appellant

— matched the Impala ’ s driver

“ in certain ways ” : both were black men who happened to be wearing wh ite t

- shirts

. O fficers searched the Hyundai

. Officer Lane testified that he noticed a marijuana smell when he “ peeked into the car ” and also testified that he could sm ell it

2 Contrary to the S tate ’ s as sertion in i ts brief, Corporal Uranga di d not see Appellant or anyone else actually leave Apart ment 12. He acknowledged at trial that he could not see the apartment ’ s door , that he could not say who he saw coming from around the brick wall by the apartment , and that that it was not his testimon y that it was Appell ant.7

when he approached the car after the occupants had been removed and both doors
op en ed

. Officer Lane and another officer found marijuana in a yellow fanny pack in the glove compartment , as well as a cigarillo wrapper contain ing m arij uana . The marijuana , which cumulatively w eigh e d 2.8 ounces, was in “ multiple little smaller bags [of w hat]

. . . looked to be closely equal amounts

. ” They also found $1,000 in cash underneath the passenger seat

. Appellant was arrested and charged with marijuana possession. Officer Lane testified that they did not arrest the Hyundai ’ s driver for poss es sion because they were already charging her with evasion and because

— despite her owning and driving the

car that, according to the officers, smelled of marijuana

— there was no evidence linking her to the drugs. He did not ask her if she knew that the dru gs were in the glove compartment , and he testified that he had no evidence to prove tha t ei ther she

or Appellant knew the drugs were there. Officer Lane testified that other than the drugs ’ location , he had no evidence that Appellant had control of the dr ug s and no evidence that the cash in the car was related to drug activity

. Officer Lane stated that they linked Appellant to the drugs in the glove compartment based on Corporal Uranga ’ s statement that he had seen Appe llant near Apartment 12

— a location th at , based on the search of the Impala, the officers linked

to drug activity. In fact, however, Corporal Uranga could not say whether Appellant was the person he saw near Apartment 12.8

Appellant ’ s attorney demonstrat ed at trial that Officer Lane could no t smell the marijuana seized from the car if it was more t han four inches away from him , contradicting his statement that he could smell the marijuana from outside the car or
when he looked inside

. O n cros s
- examination, however, h e testified that in the

c ou rtroom, the bag the drugs were stored in was a h eat

- sealed bag, whereas when
found in the Hyundai, they were in closed zip

- top bags, which were then placed in a larger unsealed zip

- top bag and then placed i n the fanny pack that was in the closed glove co mp artment
. After del iberating, the presiding juror read the verdict to the court, stating that the jury found Appellant “ guilty in the offense of possession of a usable quantit y of marijuana in the amount of 4 ounces or less but more than 2 ounces. ” When a sked by the trial court, the presiding juror stated that the verdict was unanimous. Upon Appellant ’ s request, the trial court polled the jury, and each juror stated that their
verdict was “ guilty. ” The trial court accepted the verdict. However, t he p r es iding juror left the verdict form blank

.

S UFFICIENCY OF THE E VIDENCE Because it is disposit ive, w e begin with Appellant ’ s second issue challenging the sufficiency of the evidence to su pport his conviction

. I. Standard of Review
Federal due pro cess req ui res that the State prove beyond a reasonable doubt every element of the crime charged. Jackson v. Virginia , 443 U.S. 307, 316, 99 S. Ct.9

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due

- process evidentiary

sufficiency review, we vi ew a ll the e vi dence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime ’ s essential elements beyond a reasonable doubt. Jackson , 443 U. S. at 319, 99 S. Ct. at 2789; Queeman v. State , 520 S.W.3 d 61 6, 622 ( Te x. Crim. App. 2017). The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2 016)

. II. Th e Evidence Is Ins ufficient to Support Appellant ’ s Conviction
. A. The State Had to Link Appellant to the Drugs Through More Than Mere Presence. In order to establish possession of contraband , the State must prove that the
defen dant (1) exercised car e, cus to dy , control , or management over the contraband, and (2) knew that the matter possessed was contraband. See Tex. H ealth & Safety
Code Ann. § § 481.002(38) (defining possession), 481. 121 ( providing offense for knowing or intentional possession of a u sable q u an tity of marij uana ); Deshong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) ; Harris v. State , 532 S.W.3d 524, 531 (Tex. App.

— San Antonio 2017, no pet.)

. A defendant ’ s m ere presence in the same place where the contraban d is being
used o r po ssessed do es not support a possession finding

. McGoldrick v. State , 682 S.W.2d 573, 578 (Tex. Crim. App. 1985) (“‘[P]ossession’ means more than being10

where the action is ; it involves the exercise of dominion and control over the thing actually possess ed ”) ; Allen v. State , 249 S.W.3d 680, 697 (Tex. App.

— Austin 2008, no pet.)

. Rather, the State must link the defendant to the contraband with evidence of additional facts and circumstances indicating the defendant ’ s knowledge and control of the contraband. Al

len , 249 S .W.3d at 697.
B. The State Did Not Link Appell ant to Apartment 12. The State put on some evidence linking Apartment 12 to narcotic activity : the police stopped a car in which they found both drugs and an envelope with the Apartment 12 addres s . But the ev idence did not link Appellant to Apartment 12. Corporal Uranga testified that he saw a black man in a white t

- shirt come from behind the brick wall near Apartment 12 and go into the parking lot

— a parking lot with exits
on both its north and sout h side s
— bu t did not see where that man went after that. Corporal Uranga did not describe the man, other than stating that he was black and

— like the Impala’s driver and one of the men he questioned outside Apartment 12

— wearing a white t

- shirt. N ot lon g af ter , he sa w Appellant sitting as a passenger in a Hyundai that was dri ving toward the parking lot ’ s exit

. Appellant was wearing a white

t

- shirt. Corporal Uranga did not know if Appellant was the man he saw near Apartment 12, did not see Appellant get int o the ca r, and did not know how long the car had been in the parking l ot. This evidence is insufficient to create a reasonable inference that Appellant was linked to Apartment 12. Accordingly, evidence linking A ppel lant to the drugs in the11

Hyundai cannot be b as ed on any connection bet ween Apartment 12 and narcotic activity and could be based only on Appellant ’ s presence in the car.
C. The State ’ s Evidence Did Not Establish Appellant ’ s Care, Custody, Control, and Manageme nt o f the Contraband. The State argues that the ev idence established facts and circumstances that link Appellant to the drugs in the car. First , it points out that Appellant was present at the time of the search, i.e., Appellant and the drugs wer e in the same place at the same
time , which, as the State a cknowledges, is not enou gh to establish possession

. See Hargrove v. State , 211 S.W.3d 379, 385 (Tex. App.

— San Antonio 2006, pet. ref ’ d) (stating that when the defendant is not in exc lusi ve possession of the place where contraband is found, addi tional inde penden t facts and circumstances must link the
defendant to the contraband in order to raise a reasonable inference of the
defendant ’ s knowledge and control of the contraband ) ; see als o Al len , 249 S.W.3d at 697; c f. Damron v. State , 570 S.W.2d 93 3, 936 (Tex . Crim. App. 1978) (holding evidence
did not link Appellant to narcotics found in the house he lived in when the evidence showed, among other things, that the defendant was not at hom e at the time of the
search and that “ there were other persons present at the time of the search and shown
to be living there so [the defendant] was not in exclusive possession ” ). Second , “ the marijuana was in close proximity to or accessible by Appellant ” be cause he was in the front passenger seat and the marijuana was in the glove compartment
. See Le v. State , 479 S.W.3d 462, 468 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) (noting that the12

appellant had access to and control over the truck where drug s we re found)

. Third ,

“ there was an odor of the contraband pr esent at th e scene , ” which could alert Appellant to the marijuana ’ s presence. See Christopher v. State , 639 S.W.2d 932, 935

– 36 (Tex. Crim. App. 1982) (stating that the fact that odor of marijua na c ould be detected outside the cab of a pickup truck “ sugges ts that the [defendant] woul d become aware
of the existence of the [drug] before entering the cab ” ), overruled on other grounds by
Preston v. State , 700 S.W.2d 227 (Tex. Crim. App. 1985)

. Fourt h , t he glove compartment where the marijuana was found was an enclosed pl ace . See Poin dexter v.
State , 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (concluding that the appellant exercised care, custody, control, and management over drugs found hidden in th e ap pellant ’ s home in a space that was accessible to the appel lant as a r esident but no t accessible to a casual visitor , when there was no evidence that would support a
conclusion that the appellant was an innocent bystander to someone else ’ s drug operatio ns w

ithin his own home) , overruled on other grounds by Robinso n v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015)

. And fifth , Appellant was in possession of $1,000, “ a large am ount of cash

. ” See Abdel

- Sater v. State , 852 S.W.2d 671, 676 (Tex. A pp.

— Houston [14th Dist.] 1993, pet. ref ’ d) (stating that “ [i]f the

amount of money found in appellant ’ s possession is more than would normally be carried by an individual, it might be ind icative of dealing in narcotics ” ). The State argues that this eviden ce l inks Appellant to the marijuana in the glove compartment

“ and provide s sufficient logical force for the jury to have concluded beyond a13

reasonable doubt that Appellant possessed the m arijuana. ” See Chavez v. State , 769 S.W.2d 28 4, 2 88 (Tex. App.

— Houston [1st Dist.] 1989, pet. ref ’ d) (listing various links betwee n a defenda nt and contraband that may establish a defendant ’ s care, custody, and control of the contra band when the defendant is not in sole possession
of the location whe re t he contraband is found) ; see also Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) (stating that when looking at links 3 between the defendant and the contraband, it is “ not t he number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial ” ).

1. Presence and Proximity When arrested, Appellant was in the same place as the marijuana . As noted above , that fact alone is not en ough to establish possession. See Hargrove , 211 S.W.3d

3 Courts have considered the following possible “ links ” in determining whether the evidence is sufficient to show posse ssio n of a narcotic :

( 1) whether the defendan t was presen t whe n a search is conduct ed; (2) whether the contraban d was in plain view; (3) the defen dant ’ s proximity to and the accessibility of the narcotic; (4) whether at the time of the arrest the defenda nt was under the influence of narcotics , (5) po ssessed other con traband or narcotics , or (6) made incriminating st atements ; (7) whether the defendan t attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contrab and ; (10) whether other contraband or drug pa raphernalia were present; (11) whether the defendant owned or had t he right to possess the place wher e the drugs were found; ( 12) whether drugs were found in an enclosed place ; (13) whether the defendant was fou nd w ith a large amount of cash; and (14) whet her the conduct o f the defendant indic ated a consciousness of guilt

. Evans v. State , 202 S.W.3d 158, 16 1 n. 4 (Tex. Cr im. App. 2006)

.14

at 385

. Nor is proximity alone enough; r ather, it must be determined whether his proximity , in c ombination with ot her evidence, is enough to show possession. See
Harris , 532 S.W.3d at 531 ; Allen , 249 S.W.3d at 697 ( “ Mere presence of an accused at a place where contr aban d is found, even in close prox imity thereto, does not in itself justify a finding of joint p ossession

. ” ). We therefore must look at the other facts and circumstances that could support a finding of possession.

2. The Marijuana Odor Off icer Lane ’ s tes timo ny was evidence from which the jury could believe there was a marijuana odor some where in th e car . T hat odor could have alerted Appellant to its presence , see Christopher , 639 S.W.2d at 935

– 36 , assuming of course that Appellant was fami liar with its o dor

— an assumption for which there was no
evidence . B ecause being aware of someone el se ’ s posses sion of contraband does not make a person a joint possessor of the contraband, Appellant ’ s assumed awareness of
the existence of marijuana in th e car could not, by itself, demonstrate that Appellant had care, custody, and management of it

. See McGoldrick , 682 S.W.2d at 578 ( “ [M] ere presence alone at a place where narcotics or dangerous drugs are being used or
pos sessed by others does not justify a finding of joi nt p ossession

. ” ) ; Allen , 249 S.W.3d at 697 ( “ The mere presence of an accused at place where cont raband is being possessed or used by others, and even the accused ’ s knowledge of an offense by others, does not constitute joint possession of the contraband

. ” )15 3. The Contraband Was in An Enclosed Space
. The State cites the fact that the drugs were in an enclosed space as evidence showing possession without discussing why courts consider such evi dence as linking
contraband and a defendant and without discussing whet her that reasoning applies
here . C ontraband ’ s location in an enclosed space is evidence of possession when it has been hidden in a secret location accessible to or likely to be used by the defendant but not an innocent party. For example, in Poindext er , the Texas Court of Criminal Appeals pointed out that the contraband hidden in th e defendant ’ s home in a space
that was accessible to the defe n dant as a resident but not accessible to a casual visitor

was no t evidence that would support a conclusion tha t th e defendant was an innocent bystander to someone else ’ s drug operations within h is own home

. See 153 S.W.3d at 406 (concluding that the defendant exercised care, custody, control, and management over drugs found hidden in his home)

. Here, Appellant was not driving the car when it was stopped. He did not own the car

. While the glo ve compa rtm ent in this case was accessible to Appellant as a
passenger

— assuming it was unlocked, a point on which no evidence was presented at trial

— it was not more accessi ble to Appellant than the car ’ s owner. T here was no evidence of how long Appellant was in or h ad access to the car other than the short time between when Corporal Uranga saw the car leaving its space and when Officer Lane stopped it

. The only evidence sh owin g any connection between Appellant and
the car was in Corporal Uranga’s body cam video ; on the video, the driver stated that16

she went to the apartment complex to pick up a friend. A ssuming that friend was App ellant, however, the video was not shown to the jury

. T he re was no evidence that Appellant had any righ t of possession to the car or that establish ed his link to the car
other than that he was in it when the police stopped it

. The police had the driver step out of the car f irst , leaving Appellant alone in the car, but they had Appellant keep his h ands outside the window during that time
p eriod. There was no evidence that he touched the glove compartment

— for example, there was no evidence of his fingerprints on the glove com part ment or on the fanny pack or any of the bags inside it. See Barbosa v. State , 537 S.W.3d 640, 646 (Te x. App.

— San Antonio 2017, no pet.) (noting that despite the defendant ’ s assertion that he did not possess the drugs found in a vehicle and that he had no access to the vehicle, his fingerprints were found on the cellophane wr apping the drugs ) ; see also
Las saint v. St ate , 79 S.W.3d 736, 745 (Tex. App.

— Corpus Christi 2002, no pet.) ( discussing different scenarios involving fingerprint evidence in possessi on c ases and holding that in that case the defendant ’ s fingerprints on a shopping bag holding smaller bags of drugs d id not establish a connection between the defendant and the drugs when someone else ’ s fingerprints were on the smaller bags but the defenda nt ’ s were not). There was no testimony that any offic er saw Appellant make any furtive gestures or moveme nt toward t he glove compartment
. Given the evidence at trial, t he fact that the glove compartment is an enclosed space does not give rise to a reaso nabl e inference that the drugs were under17

Appellant ’ s care, custody, control, and management, even assuming he could tell by

t he car ’ s odor that drugs were in the car. See Allen , 249 S.W.3d at 694 , 697 (stating
that when contraband is found hidden or secreted, the Sta te must address whether the accused knew of the existence of the secreted place and its conten ts and that knowled ge that others in the place have committed an offense does not show possession

).
4. The Cash A defendant ’ s possessi ng cash in a “ large am ount ” can be evidence of narcotic activity be cause, when combined with other evidence, it can s how that the defendant is involved in buying or selling drugs

. See, e.g. , Carr v. State , No. 08

- 11

- 00315

- CR, 2013 WL 5873299, at *1 (Tex. App.

— El Paso Oct. 30, 2013 , pet. ref ’ d) (not designated for publica tion) (

noting officer ’ s testimo ny that “ it was som eti mes common for drug dealers to have large amounts of cash on them depending on whether they have just bought or sold drugs ” ) . The phrase “ large amount ” is am orph ous. C ompare Soliz v.
State , No. 12

- 18

- 0 0040

- CR, 2019 WL 1142473, at *4 (Tex. App.

— Tyler M ar. 12, 2019, no pet.) (mem. op., not designated for publication) ( “ Appellant was found to be in possession of $ 540 , a substantial amount of cash. ” ) (emphasis added) , with Jones v. S tate , No. 01

- 14

- 00385

- CR, 2015 WL 4591745 , at *2 (Tex. App.

— Houston [1st Dist .] July 30, 20 15, n o pet.) (mem. op. , not designated for publication) ( “ Harrington also seized from appellant ’ s pockets approximately $507 in cash, which, although not a large amo unt , was a ‘ decent amount of cash to have on a person. ’” ) (emphasis18

added) ; s ee also Evans , 202 S.W.3d at 165 (stating that the de fendant ’ s having $160 had some slight probative value in connecting him to care or custody of drugs). “ T he amount of cash must be viewed i n co njunction with the surrounding circumstan ces to determine wh ether it is a large quantity

. ” See Torres v. State , 466 S.W.3d 329, 333

– 34 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) ; cf. Evans , 202 S.W.3d at 165 (stating
that defendant ’ s having $160, view ed in a vacuum, was “ hardly dispositive ” but that evidence s h owed defendant did not have a job, and concluding th at when combined with other evidence that he was found sitting next to $1,300 worth of contraband in plain view, the $160 had slight probat ive value in connecting him to the contraband );
In re A.P. , 512 S.W.3d 602, 609 (Te x. App.

— El P aso 2017, no pet.) (st ating in juvenile proceeding that fifteen

- year

- old A.P. ’ s having $140 was evidence of a link with the drug operation going on in the house he h ad been arrested in )

. Here, t he only evid ence linking the ca sh to Appellant was that it was under his

seat. He w as not alone in the car, it was not his car, and t here was no evidence that he was the one that put the cash there ; no officer testified, f or e xample, that they saw him make any moveme nts consistent with putting the cash u nder the sea t. Assuming the jury c ould infer that the cash belonged to Appellant based solely

on its location, the jury heard no evidence that the cash was related to crimin al

a ctivity. See Willis v. State , No. 02

- 16

- 00163

- CR, 2017 WL 4 819375, at *9 (Tex. App.

— Fort Worth Oct. 26, 2017, no pet.) ( mem. op., not designated for publication) ( “ [M]oney found in close quarters with controlled substances . . . do[es] not alone19

provi de e vidence of the nexus between money and th e sale or distribut ion of a
controlled substance. ” )

. Moreover, t he jury heard n o testimony that having that much cash was consistent with drug activity. Contra Thomas v. State , No. 05

- 12

- 01119

- CR,
2013 WL 5786 087, at *3 (Tex. App.

— Dallas Oct. 28, 2013, p et. ref ’ d) (not des ignated for publica tion) (

noting testimony of officer that “ t he denominations of money found at the house were consistent, based on his training and experience, ‘ with street
denominations used in drug sales ’” )

. Further, t here was no tes timony that the cas h was in denominati ons used in drug sales or in incre ments co nsistent with drug sales.
See id. ; Williams v. State , No. 01

- 11

- 00017

- CR, 2012 WL 2357416, at *8 (Tex. App.

— Houston [1st Dist.] Ju ne 2 1, 2012, pet. ref ’ d) (mem. op., not desig nated for publicati on) (

noting that tw o officers testified that large am ounts of cash bundled in
thousand

- dollar increments was consistent with money obtained through drug dealing)

. Also, t he State did not put on e vidence that Appellant had no job or othe r evidence that the money may not have come from a legitimate source. C ontra Ca rroll
v. State , 266 S.W.3d 1, 3 (Tex. App.

— Waco 2008, pet. ref

’ d) (holding that sufficient evidence supported jury ’ s finding that d efen dant possessed cocaine when, among
other evidence, he was ar rested with $628 in cash in his pocket despite bei ng unemployed)

. Instead, the only testimony related to cash and criminal activity was
Officer Lane ’ s testimony that he personally thought tha t $1 ,000 was a lot to carry but
that carrying cash alone does no t give probable cau se to arrest someone and is not an20

indic ation of criminal activity , that he d id not know where the cash came from, and
that he had no evidence that the cash was at all relat ed t o any criminal activity.

5. The Combined Evidence Does N ot Sufficiently Lin k Appellant to the Con traband.
Non e of the facts or circumstances relied on by the State are sufficient on their
own to show either sole possession or join t po ssession with the driver . However, in de termining whether evidence is suffici ent to show an offe nse , we do not look at the
evidenc e in isolation; rather, we review the combined pieces of circumstantial evidence, coupled with reasonable inferences from the m . Evans , 202 S.W.3d at 166 ; Powell v. S tate , 194 S.W.3d 503, 507 (Tex. Crim. A pp. 2006)

. We th us summarize all of

t he circumstan tial evidence from the record that is relevant to linking Appellant to the drugs found in the Hyundai

. Appellant was a p asse nger in a car in which drugs were found. There was an odor of marijuana that was detectable some where in the car or possibly outsi de of it (assuming the jury believed Officer Lane ’ s testimony that the heat

- sealed bag the drugs were stored in at trial expl ained why he could not smell the marijuan a half a foot away from him in the co urtroom ). Th is odo r , as suming that Appellant was
fam iliar with the odor of marijuana, could have alerted him to its presence in the car. However, the drugs were not in plai n vi ew to confirm their presence . And neithe r were they secreted away in a locati on giving rise to t he re asonable inference that Appel lant, as opposed to the driver or some other person , was responsible for putting21

the drugs there

. Appellant was sitting clos e enough to the glove compartment that he was physically capable of doing so , but there was no te stimo ny or other evidence suggesti ng that he did so

. There was no evidence that police found Appellant ’ s fingerprints on the glove compartment or on any o f th e bags holding the drugs

. T here was $1,0 00 under the seat on which Appellant had been sitting, b ut there was
no evid ence of where the money came from or to who m it belonged . There was no evidence, other than the existence of drugs in the glove compar tmen t , suggesting that the money came from th e sale of drugs. Appellant did not o wn the car and was not driving it. The re was no evid ence showing how long Appellant had been in the car. The State did not have to disprove all other reasonable alternativ e hy pothes e s inconsistent with Appellant’s gu ilt. See Wise v. State, 364 S.W.3d 9 00, 903 (Tex. Crim. App. 2012) . But it did have to p rove beyond a reasonable doubt that not only would it have been possible for Appellant to exercise care, custody, control, and

man agem ent of the drugs but that he actually did so. Under the specific
cir cumstances of this case, w hi le the facts may be suspiciou s, th e State did not sustain its burden of proof that A ppellant committed the charged offense , and w e cannot conclude that a r atio nal trier of the facts could have found t he essential elements beyond a reasonable doubt

. See Mc Goldrick , 682 S.W.2d at 580

. We s ustain Appellant ’ s second issue , which is dispositive . Accordingly, we do not reach Appellant ’ s first issue challenging whet her the jury ’ s oral finding of guilt cons titutes a verdict or his thi rd issue asse rting harm

.22 C ON CLUSION Because the evidence is in sufficient to support appellant ’ s conviction , we

reverse the trial court ’ s judgment and render a judgment of acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey , 437 U.S. 19, 24

– 2 5, 98 S. Ct. 2151, 2154

– 55 ( 1978); Burks v. United States , 437 U.S. 1, 16

– 18, 98 S. Ct. 2141, 2150

– 51 (1978); Winfrey v. State , 393 S.W.3d 763, 774 (Tex. Crim. App. 2013).

/ s/ Mark T. Pittman
Mark T. Pi ttma n Justice Do Not Publish Tex. R. App. P . 47.2(

b)
Delivered: July 30 , 201 9