No. PD-0730-15
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS

DALLAS CARL TATE, Appellant

v. THE STATE OF TEXAS, Appellee
Appeal from Montague County

* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300
JOHN R. MESSINGER Assistant State Prosecuting Attorney Bar I.D. No. 24053705
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax) PD-0730-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/29/2015 4:20:55 PM Accepted 7/1/2015 1:20:34 PM

ABEL ACOSTA CLERKNAMES OF ALL PARTI ES TO THE T RIAL CO URT’S J UDGMENT

*Th e pa rti es to th e tri al co ur t’s jud gm en t are th e St at e of Tex as an d App el la nt , Dall as Carl Tate

. *Th e cas e was tri ed be fo re th e Hon or ab le Ja ck A. McGa ug he y , 97 Ju di ci al Dis tri ct th Co ur t, Mo nt ag ue Co un ty, Tex as
. *C ou ns el fo r App el la nt at tri al was Je an ne tt e Ri ch m on d, Ri ch m on d Law Offi ce, 90 0 8t h S tre et , Sui te 11 5, Wich it a Fal ls , Texa s 7 63 01

. *C ou ns el fo r App el la nt on ap pe al was Ly nn Swit zer, P.O. Bo x 20 40 , 40 6 N. Gran d Ave ., Sui te 10 8, Gai ne sv il le , Texa s 7 62 41

. *C ou ns el fo r th e St at e at tri al was Pai ge W il li am s, Dis tri ct Att or ne y , an d Cas ey Hall , Ass is ta nt Dis tri ct Att or ne y , 97 th Ju di ci al Dis t r i c t, P.O. Bo x 55 , Mo nt ag ue , Tex as 76 25 1.
*C ou ns el fo r th e St at e on ap pe al was Zach ary Ren fro , Sp eci al Pro se cu to r, 30 4 Cl ay St ., Noco na , Texa s 7 62 55

. *C ou ns el fo r th e St at e be fo r e t hi s Co ur t is Jo hn R. Mes si ng er, Ass is ta nt St at e Pro se cu ti ng Att or ne y , P.O. Box 13 04 6, Au st in , Texa s 7 87 11

.

iTABLE OF CONTENT S

INDEX OF AUT HORITIES.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii i
STATEMENT REGARDING ORAL ARGUMENT.

. . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF TH E CASE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Did the co urt of ap pea ls ig no re m ul tip le rul es of su ff i c i e n c y rev ie w an d su bs tit ute its judg m ent fo r the ju r y ’ s w hen it hel d ther e w as in su ffi ci ent ev id ence co nnec tin g ap pel la nt to the co ntra ba nd fo und in pl ai n vi ew in the cent er co ns ol e o f a c ar tha t he o w ned a nd w as dri vi ng ?
ARGUMENT AND AU THORITIES.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PRAYER FOR R ELIEF.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFI CATE OF COMPLIANCE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFI CATE OF SERVICE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 APPENDIX (Opi ni on of t he Co ur t o f App eal s, Di ss en ti ng Opi ni on )

iiINDEX O F AUTHORI TI ES

Cas es Abe rc ro mbi e v. S ta te , 52 8 S .W .2d 57 8 (Te x. Cr im . App . 19 74 ) .

. . . . . . . . . . . . . . 8
Cl ay to n v . St at e , 23 5 S .W .3d 77 2 (Te x. Cr im . App . 20 07 ).

. . . . . . . . . . . . . . . . . . 7
Eva ns v. St at e , 20 2 S .W .3d 15 8 (Te x. Cr im . App . 20 06 ).

. . . . . . . . . . . . . . 2, 4 , 7, 8
Gees a v . St at e , 82 0 S .W .2d 15 4 (Te x. Cr im . App . 19 91 ).

. . . . . . . . . . . . . . . . . . . . 5
Ja cks on v. Vir

gi ni a , 44 3 U.S. 3 07 (19 79 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Jo hn so n v . St at e , 87 1 S .W .2d 18 3 (Te x. Cr im . App . 19 93 ).

. . . . . . . . . . . . . . . . . . 7
Mer ri tt v. St at e , 36 8 S .W .3d 51 6 (Te x. Cr im . App . 20 12 ).

. . . . . . . . . . . . . . . . . . . 7
Mur ra y v. S ta te , 45 7 S .W .3d 44 6 (Te x. Cr im . App . 20 15 ).

. . . . . . . . . . . . . . . . . . . 7
Poi nd ext er

v. St at e , 15 3 S .W .3d 40 2 (Te x. Cr im . App . 20 05 ).

. . . . . . . . . . . . . . . . 6
Ta te v. St at e , 02 -1 4- 00 17 9- CR, _ _S .W .3d

__ , 20 15 Tex. Ap p. LEXIS 4 94 1 (Tex . App .–F or t Wort h M ay 14 , 20 15 ).

. . . . . . . . . . . . . . . . . . . . . . . . pa ss im
Sta tute s a nd Rul es T E X
. C O D E C R IM
. P R O C . art . 38 .04

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
T E X
. R. A P P
. P. 66 .3(f

).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iiiNo. PD-0 73 0- 15
TO TH E COURT OF CRIM INAL APPEALS
OF THE STAT E OF TEXA S
DALLAS CARL TAT E, App el la nt

v. THE STAT E OF TEXA S, App el le e

* * * * *
STATE ’S PETI TI ON FOR DIS CRETI ONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMI NAL APPEALS:
Co m es no w th e St at e of Tex as , by an d th ro ug h it s St at e Pro se cu ti ng Att or ne y ,

an d res pe ct fu ll y ur ge s th is Co ur t to gr an t d i s c r e t i on ary rev ie w of th e ab ov e na m ed

cau se , pu rs ua nt to th e ru le s o f ap pe ll at e p ro ced ur e.

STATE MENT REG ARDING ORAL ARGUMENT
The St at e d oe s n ot req ue st ora l ar gu m en t.

STATE MENT OF TH E CASE App el la nt was co nv ic te d of po ss es si on of a co nt ro ll ed su bs ta nc e an d se nt en ced

t o two y ears in st at e jail

. The co ur t of ap pe al s he ld th at th e ev id en ce was le ga ll y 1

4 RR 16. 1
1in su ffi ci en t t o c on ne ct ap pe ll an t t o t he m et ha m ph et am in e fo un d i n h is ve hi cl e. STATE MENT OF PROCEDURAL HI STO RY
On May 14 , 20 15 , th e co ur t of ap p e a l s r e ve rs ed ap pe ll an t’s co nv ic ti on an d

ren de red a jud gm en t of acq ui tt al i n a p u b l i s he d op in io n. Ju st ic e W al ke r wro te a 2
di ss en ti ng op in io n. No m ot io n fo r reh eari ng was fi le d. Afte r th is Co ur t gran te d an

ex te ns io n, t he Sta te ’s pet it io n i s d ue on Ju ne 29 , 20 15

. GROUND FOR REVI EW
Did the co urt of ap pea ls ig no re m ul tip le r u l e s o f su ffi ci ency rev ie w an d su bs tit ute its j u dg m ent fo r the jury ’s w hen it hel d ther e w as in su ffi ci ent ev id ence co nnec tin g ap pel la nt to the co ntra ba nd fo und in pl ai n vi ew in the cent er co ns ol e o f a c ar tha t he o w ned a nd w as dri vi ng ?

ARGUMENT AND AUTHORI TI ES
The so -cal le d “ affi rm at iv e li nk s” ru le pr ot ect s an i n n o c e n t bysta nd er fro m

co nv ic ti on fo r po ss es si on m erel y be cau se of hi s fo r t ui to us pr ox im it y to so m eo ne el se ’s co nt rab an d. Howev er, pr es en ce or pr ox im it y, whe n co m bi ne d wit h ot he r 3

ev id en ce, m ay

well sat is fy th e St at e’s bu rd en of pr oo f. Sh or tl y aft er app el la nt was 4

rem o ve d fro m hi s ve hi cl e, an of fic er di sc ov ered a syrin ge of m et ha m ph et am in e in pl ai n vi ew un de r th e ai r co nd it io ni ng co nt ro ls wit hi n reac h of th e dr iv er’s se at

. W as

Tate v. State , 02-14-00179- CR, __S.W .3d__, 2015 Tex. App. L EXI S 4941 (Tex. A pp.–For t 2 Worth May

14, 2015). Evans v. State , 202 S.W .3d 158, 161-62 (Te x . Crim. App. 2006). 3
Id . at 162. 4
2ap pe ll an t’s p ro xi m it y to wher e th e syrin ge was fo un d m erel y for tu it ou s?
Fact s App el la nt was dr iv in g hi s ve hi cl e whe n he was st op pe d b y Offic er Be ck ha m fo r ou ts ta nd in g warra nt s. The re was on e pa ss en ge r in th e fro nt an d on e in th e ba ck

. 5 6
The pa s s e n g ers rem ai ne d in si de fo r ro ug hl y fiv e m in ut es aft er ap pe ll an t was

rem ov ed

. Fro m whe re he was st an di ng wit h ap pe ll an t, Bec kh am co ul d se e th e fro nt

7

p a s s e ng er m ov in g, bu t he di d no t se e he r reac h ov er to ward s th e area of th e ai r co nd it io ni ng co nt ro ls

. He rem ov ed th e pa ss en ge rs aft er req ue st in g a un it to tra ns po rt 8

ap pe ll an t to jail

. He th en im po un de d t h e v e h ic le an d co nd uc te d an in ve nt or y 9

pu rs ua nt to a writ te n p ol ic y
. Bec kh am fo un d a syrin ge co nt ai ni ng .24 gr am s of 1 0

m et ha m ph et am in e in an op en co m pa rtment un de rn eat h th e rad io an d cl im at e

co nt ro ls

. It was in pl ai n v ie w and di rect ly to t he rig ht of t he dri ve r’s se at

.

1 1 1 2

3 RR 12-16, 60. 5
3 RR 13. 6 3 RR 24-25, 28. 7 3 RR 27-28, 30-31. 8
3 RR 25. 9
3 RR 15. 1 0 3 RR 18, 48, 64. 1 1 3 RR 18, 28, 60, 63. 1 2
3Opi ni on be lo w

The co ur t of ap pe al s rev ers ed th e jury’ s ve rd ic t of gu il t. It pr op erl y st at ed th e de fere nt ia l st an da rd of rev ie w fo r su ffi ci en cy of th e ev id en ce. It ci te d he av il y fro m 1 3
Eva ns v. St at e , th e st y le cas e fo r us in g ci rcu m st an ti al ev id en ce to li nk a de fen da nt to

a co nt ro ll ed su bs ta nc e. It co m pi l e d a n o n - ex ha us ti ve li st of 16 po te nt ia l li nk s. 1 4 1 5
Im po rta nt ly, it rei te rat ed th at th e nu m be r of li nk s is no t as im

po rta nt as th ei r “ lo gi cal
fo rce” an d th e ab se nc e of va rio us li nk s is no t ev id en ce of in no cen ce to be weig he d
ag ai ns t t he li nk s p res en te d. Unfo rtu na te ly, it di d n ot fol lo w th es e ru le s: 1 6
The di ss en t arg ue s th at th e syrin ge ’s l oc at io n “ in pl ai n vi ew in an op en cu bb y in th e car’s co ns ol e” th at was “ co nv en ie nt ly acce ss ib le to Tate ” is su ffi ci en t in ad di ti on to hi s veh ic le own ers hi p clai m to li nk th e syrin ge to hi m
. . . . Mi ss in g fro m th e di ss en t’s lo gi cal eq ua t io n is an y ev id en ce th at at th e ti m e Tate was rem ov ed fro m th e car, th e syrin ge was lo cat ed in th e co m pa rtment whe re it was la te r fo un d.

. . . [A]t le as t fiv e m in ut es ha d el ap s e d b e f o r e t h e wom en were rem ov ed fro m th e ve hi cl e, du rin g whi ch ti m e th ey were m ov in g aro un d so m uc h th at [th e of

fic er] ad m it te d he co ul d no t ke ep a pr op er ey e on th em an d co ul d no t te ll what th ey

were d oi ng
. 1 7
It c on cl ud ed : [T]here can be no lo gi cal in fere nc es fro m a co m pl et e ga p in pr oo f—e it he r di rect

Slip op. at 4-5 (citing , inter alia , Jack son v. Virginia , 443 U.S. 307 (1979), and T E X

. C O D E 1 3 C R I M

. P R O C

. art. 38.04 (“The jury , in all case s, is the exclusive judge of the fac ts proved, and of the weig ht to be g iven to the testimony . . . .”). Slip op. at 5-7. 1 4 Slip op. at 6-7. 1 5 Slip op. at 6. See E

vans , 202 S.W .3d at 162. 1 6 Slip op. at 8 (citations omit ted). 1 7
4or ci rcu m st an ti al —as to w h e t h er th e syrin ge was in th at co m pa rtment at an y po in t i n t im e whe n Tat e was als o p res en t i n t he ve hi cl e. . . . On th is reco rd , th e on ly li nk be twee n Tate an d th e syrin ge at th e ti m e he was rem ov ed fro m th e ve hi cl e was th at he was th e dr iv er an d se lf -p ur po rte d own er o f th e v eh ic le

. 1 8 Arg um en t The co ur t of ap pe al s ig no red ba si c ru le s of su ffi ci e n c y r e v i e w on it s way to
acq ui tt in g a pp el la nt

. Alt er na ti ve r ea so na bl e h

yp ot he si s Th e c o u r t of ap pe al s is co rrec t th at , “ ab se nt fro m th e reco rd is an y ev id e n c e th at th e syrin ge was no t i n t h e po ss es si on of [th e pa ss en ge rs ] whe n Tate le ft th e

ve hi cl e
. . . .” Bu t ho wev er reas on ab le th is in no cen t ex pl an at io n m ay be , fo cu si ng

1 9

on th e ex is te nc e of an “ ou ts ta nd in g reas on ab le hypo th es is in co ns is te nt wit h th e gu il t of th e accu se d” effe ct iv el y rep ud ia te s th e jury’ s r o l e as th e ex cl us iv e jud ge of th e fact s an d p la ces th e rev ie win g c ou rt i n t he po st ur e o f a “ th irt een th juro r.” 2 0
Jo in t p os se ss io n Mo reo ve r, a hypo th es is ba se d on ex cl us iv e po ss e s si on by ei th er ap pe ll an t or

a pa ss en ge r ig no res th e ru le th at p o s s e s s i on ne ed no t be ex cl us iv e. “ The m ere fact
th at a pe rs on ot he r th an th e accu se d m ig ht ha ve joi nt po ss es si on of th e pr em is es do es

Slip op. at 10. Appellant testified that the vehicle, “wa sn’t in my name, but it did belong to 1 8 me. . . . I hadn’t -- hadn’t ha d any

paper work tra nsfer red y et, but it did belong to me.” 3 RR 60. Slip op. at 8 n.5 1 9
Gee sa v. State , 820 S.W .2d 154, 159 (Tex. Crim. App. 1991). 2 0
5no t req ui re th e St a t e t o pr ov e th at th e de fen da nt ha d so le po ss es si on of th e

co nt rab an d, on ly th at th ere are affi rm at iv e li nk s be twee n th e de fen da nt an d th e dr ug s

su ch th at he , to o, k ne w of t he dru gs an d c on st ru ct iv el y po ss es se d t he m .” 2 1 Ig no ri ng or re- wei gh in g e vi de nc e And , in fact , ap pe ll an t di d no t joi nt ly po ss es s th e ve hi cl e in whi ch th e syrin ge

was fo un d. Co nt rary to th e co ur t of ap pe al s’ s v i ew, ap pe ll an t is no t th e “ se lfpu rp or te d own er.” W he n vi ewed in th e li gh t m os t fav or ab le to th e ve rd ic t, ap pe ll an t si m pl y is th e o wne r. If a q ua li fie r is ne ces sa ry , he i s t he “ ad m it te d o wne r.” 2 2
The co ur t of ap pe al s al so fai le d to ack no wled ge th e pr es en ce of li nk s fro m it s li st or d own pl ay ed th ei r va lu e. Si x of the co ur t’s lin ks are pre se nt : “ th e co nt rab an d

was (1 ) in pl ai n vi ew; (2 ) co nv en ie nt ly acc es si bl e to

. . . t h e accu se d; (3 ) in a pl ace

own ed , ren te d, po ss es se d, or co nt ro ll ed by th e accu se d; (4 ) in a ca r d r i v e n b y th e

accu se d; (7 ) dr ug pa rap he rn al ia was pr es en t;

. . . [an d] (1 3) th e accu se d was pr es en t

w h e n th e se arch was co nd uc te d.” The co ur t of ap pe al s he ld th at pl ai n vi ew a n d 2 3

co nv en ie nt acce ss ib il it y m ean no th in g wit ho ut di rect ev id en ce t ha t t he syrin ge was th ere wh en ap pe ll an t i n t he ve hi cl e. 2 4

Poindexte r v. State , 153 S.W .3d 402, 412 (Tex. Crim. App. 2005). 2 1
T h u s i t i s as s u m ed t h e j u ry d i s re gar d ed o n e p as s en ger’ s statement to Be ckham that s h e 2 2 owned the ve hicle. 3 RR 15. See slip op. at 6-7. 2 3 Slip op. at 8. 2 4
6Abs en t a nd

cir cu mst an ti al

evi de nc e
In th e co ur t’s vi ew, wha t was m is si ng were fin ge rp rin ts or ev id en ce t h at
Bec kh am sa w t he syrin ge whe n ap pe ll an t was st il l in th e ve hi c l e
. Th i s Co ur t ha s 2 5

rep eat ed ly warn ed ag ai ns t fo cu si ng on m is si ng ev id en ce. Mo reo ve r, ci rcu m st an ti al 2 6

ev id en ce is as pr ob at iv e as di rect ev id e n c e an d can be su ffi ci en t on it s own to

es ta bl is h gu il t. It is no t ne ces sa ry th at ev ery fact , li ke fin ge rp rin ts , po in t di rect ly 2 7

an d in de pe nd en tl y to th e d e f e n d a n t ’s gu il t. And , far fro m be in g a pr ereq ui si te to 2 8

co nv ic ti on , a de fen da nt ’s pr es en ce ve l n o n a t th e ti m e of th e se arch is m erel y on e ci rcu m st an ce t o b e co ns id ered

. 2 9
Co nc lu si on App el la nt te st ifi ed th at th e syrin ge be lo ng ed to on e of th e pa ss en ge rs an d was

no t in th e co ns ol e whe n he was in th e car. The co ur t of ap pe al s acq ui tt ed ap pe ll an t 3 0
ba se d on th at po ss ib il it y
. Howev er, “ The jury pr es um ab ly wen t th ro ug h ex act ly th e

Slip op. at 7 n.3, 8 n.4. 2 5
See , e.g. , Murray v. State , 457 S.W .3d 446, 449 (Tex. Crim. App. 2015); Merritt v. State , 368 2 6 S.W .3d 516, 526 (Tex. Crim. App. 2012); Evans , 202 S.W .3d at 164. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). 2 7 Johnson v. State , 871 S.W .2d 183, 186 (Tex. Crim. App. 1993). 2 8
Evans , 202 S.W .3d at 162 n.12; see also slip op. a t 7. I t mig ht be inferr ed that the court of 2 9 ap p ea l s d efines “pre sence ” as a suspect’s immediate proxi mity to the contra band at the time it is discovere d, as it is undisputed that appellant was in the vehicle minutes befor e the s y ri n g e was found.
3 RR 63-65. 3 0
7sa m e weig hi ng of ev id en ce, cred ib il it y as se ss m en ts , an d al te rn at iv e-ex pl an at io n

ex erci se s an d c a me t o th e op po si te co nc lu si on , i.e. , ap pe ll an t was co nn ect ed to th e dr ug s. Und er fede ral an d Tex as la w, juri es tru m p bo th tri al an d ap pe ll at e jud ge s on weig ht -o f-ev id en ce d et erm in at io ns .” 3 1
Fro m be gi nn in g to en d, th e co ur t’s an al y si s is a va st de pa rtu re fro m th e us ua l

co ur se of su ffi ci en cy rev ie w. The di ss en t is co rrec t: th is i s a st rai gh tfo rward 3 2

po ss es si on cas e. Had th is se arch ta ke n pl ace in a ho us e whi le th e own er was go ne , 3 3

ap pe ll an t’s co nv ic ti on wou ld ha ve be en affi rm ed

. The res ul t sh ou ld be no di ffer en t 3 4
he re.

Evans , 202 S.W .3d at 164. 3 1
T E X

. R. A P P

. P. 66.3(f). 3 2 Dissent at 1 (Walker, J., dissenting). 3 3
See , e.g. , Abercrom bie v. State , 528 S.W .2d 578 (Tex. Crim. App. 1974) (op. on rhr’ g ), i n 3 4 which the lessee, Dea

n, was absent when the house was sear ched but Aber crombie and another wer e prese nt. Id

. at 586. This Court held, “While Dea n was not prese nt at the time of the sear ch, the house wa s under his control, marihuana was l iterally ever y wher e, and he or someone in the house had acc epted the marihuana broug ht by [a neig hbo r] afte r Dea n’s conver sation with him. We conclude the evidenc e was sufficie nt to support the verdict o f gu i l t y as to both Dea n and Aber crombie.” Id . at 586-87 (e mphasis added)

. 8PRAYER FOR RELIE F

W HEREFORE, th e St at e of Tex as pr ay s th at t h e C o u r t of Cri m in al App eal s
gr an t th is Pet it io n fo r Dis cret io na ry Rev ie w an d rev ers e th e de ci si on of th e Co ur t of App eal s. Res pe ct fu ll y su bm it te d,
LISA C. McM INN Sta te Pro se cu ti ng Att or ne y Bar I.D. No. 1 38 03 30 0
/s/ Jo hn R. Mes si ng er JOHN R. MESSI NGER Ass is ta nt Sta te Pro se cu ti ng Att or ne y P.O. Box 13 04 6 Aus ti n, Tex as 78 71 1 Jo hn .Mes si ng er@ SPA.Tex as .go v 51 2/ 46 3- 16 60 (Tele ph on e) 51 2/ 46 3- 57 24 (Fax )

9CERTI FICATE OF COMPLI ANCE

The un de rs ig ne d cert ifi es th at acco rd in g to th e W or dP erfe ct wor d co un t to ol
th e ap pl ic ab le po rti on of t hi s d oc um en t co nt ai ns 2,4 51 word s. /s/ Jo hn R. Mes si ng er JOHN R. MESSI NGER Ass is ta nt Sta te Pro se cu ti ng Att or ne y CERTI FICATE OF SERVI CE
Th e u n de rs ig ne d cert ifi es th at on th is 29 da y of Ju ne , 20 15 , th e St a t e ’s th
Pet it io n fo r Dis cret io na ry Rev ie w was se rv ed el ect ro ni cal ly th ro ug h th e el ect ro ni c fil in g m an ag er o r e-m ai l o n t he pa rti es be lo w. Zach ary Ren fro Sp eci al Pro se cu to r 30 4 C la y St. Noc on a, Tex as 76 25 5 ren fro la wof

fic e@ gm ai l.co m Pai ge W il li am s Dis tri ct Att or ne y P.O. Box 55 Mo nt ag ue , Texa s 7 62 51 pa ig e.wil li am s@ co .m on ta gu e.tx .us Ly nn Swit zer P.O. Box 20 40 40 6 N. Gran d Av e., Su it e 1 08 Gain es vi ll e, Tex as 76 24 1 lynn .swi tz er@ th es ol awfi rm .co m /s/ Jo hn R. Mes si ng er JOHN R. MESSI NGER Ass is ta nt Sta te Pro se cu ti ng Att or ne y

10APPENDIX

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00 179 - CR

DALLAS CARL TATE APPELLANT
V. THE STATE OF TEXAS STATE

----------

FROM THE 97TH DISTRI CT COURT OF MONTAGUE COUNTY

TRIAL COURT NO. 2013

- 0163M

- CR

---------- 

### OPINION

- --------- I. I ntroduction In one issue, Appellant Dallas Carl Tate challenges the sufficiency of the evidence used to support his conviction for possession of a controlled substance. Specifically, Tate argues that the evidence does not prove that he poss essed the syringe containing the controlled substance found near the front

- seat air

-2

conditioning unit of his car during an inventory search. We will reverse the trial court’s judgment and render a judgment of acquittal.
II. Facts Sergeant Rick Beckham, a detective with the Bowie Police Department, testified that around 2:00 p.m. on December 3, 2012, he pulled Tate over because he believed him to have outstanding warrants. Accompanying Tate were two female passengers

— Bonita Proctor and Sher ita Yvonne Hale

— and a dog. Tate exited the vehicle upon the officer’s request while the women remained in the car. Sergeant Beckham testified that he took Tate to the rear of the vehicle, informed him about the warrants, confirmed the warrants , secured the property T ate had on his person, handcuffed him, contacted dispatch to request transportation, and then placed Tate in to custody. After that, Sergeant Beckman testified that he and Tate waited near the rear of the vehicle for a patrol unit to arrive to transport Ta te to jail. From where he was standing during this process, Sergeant Beckham said that he had a clear view of Proctor, the front

- seat pa ssenger , and he did not see her reach toward the air conditioning unit or in that general direction. However, he also t estified that, because Proctor was moving around a lot and he could not tell exactly what she was doing, he asked both wom en to step out of the vehicle. According to the officer, the women exited the vehicle approximately five minutes after he had re moved Tate from the vehicle.3

When Bowie Police Officer Mark Robertson and State Trooper Rachel Russell arrived to assist Sergeant Beckham , Sergeant Beckham directed Officer Robertson to transport Tate to jail. He then reported to Trooper Russell that the fe male passengers had been moving around a lot in the vehicle and he requested that she search them. 1 Trooper Russell did so, and found no

c ontraband. Although the vehicle was not registered in his name and he was unable to provide any paperwork demonstrat ing his ownership, Tate claimed that he owned the vehicle. One of the female passengers also claimed ownership of the vehicle; however, she , too, could provide no proof. Therefore, pursuant to the Bowie Police Departmen t’s written impoundment policy, Ser geant Beckham impounded the vehicle

. The vehicle was later inventoried at the scene, at which time Sergeant Beckham discovered a syringe filled with a brown liquid substance

— later identified by an expert as 0.24 grams of methamphetamine

— located in an open compartment underneath the air conditioner/heater control panel. Sergeant Beckham described the compartment as “directly to the right” of the driver’s seat . He further testified that while both Tate and Proctor could have

1 Sergeant Beckham testified that by this time he had already requested and obtained permission to search the women’s purses and found no contraband.4

reached out and touched the com partment, he did not believe Hale, the back

seat passenger , could. 2 At the conclusion of the trial, the jury found Tate guilty of p ossession of a controlled substance, namely, methamphetamine, in an amount of less than one
gram

. The trial court sentenc ed Tate to two years’ confinement.
III. Standard of Review In our due

- process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational tri er of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). T his standard gives full play to t he responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs , 434 S.W.3d at 170. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs , 434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we may not re
- evaluate the weight and credibil ity of the evidence and substitute our judgment for that of the factfinder. Isassi v. State , 330 S.W.3d 633, 638 (Tex.

2 Tate disagreed, testifying that Hale could also have accessed the compartment if she had leaned forward between the two seats.5

Crim. App. 2010). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We must presume that the factfinder resolved any conflicting inferenc es in favor of the verdict and defer to that resolution. Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170.
IV. Analysis A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, which includes methamphetamine. Tex. Health & Safety Code Ann. § § 481.102(6), .115(a) (West 2010). To prove possession, the State must prove that the accused (1) exercised actual care, custody, control, or management over the substance and (2) knew that the matter possessed was a controlled substance. Id. § 481.002(38) (West 2010 & Supp. 2014); Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The State may prove the elements of possession throu gh direct or circumstantial evidence; however, the evidence must establish that the accused’s connection with the substance was more than fortuitous. Poindexter v. State , 153 S.W.3d 402, 405

– 06 (Tex. Crim. App. 2005). If the contrab and is not found on t he accused’ s person, independent facts and circumstances may “link” the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed the contraband.6

Evans , 202 S.W.3d at 161

– 62; Roberson v. State , 80 S.W.3d 730, 735 (Tex

. App.

— Hou ston [1st Dist.] 2002, pet. ref’d). Links are established by the totality of the circumstances, and no set formula necessitates a finding of a link sufficient to support an inference of knowing possession. Wright v. State , 401 S.W.3d 81 3, 819 (Tex. App

. — Hous ton [14th Dist.] 2013, pet. ref’ d). The number of linking factors present is not as important as the “logical force” they create to prove that an offense was committed. Roberson , 80 S.W.3d at 735. The absence of various links does not constitute evidence of innocence to be weighed against the links present. Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State , 264 S.W.3d 215, 219 (Tex. App.

— Hous ton [1st Dist.] 2008, pet. ref’d ). Texas courts have identifi ed a non

- exhaustive list of links that may, alone or in combination with others, establish a person’s knowing possession of contraband, including: whether the contraband was (1) in plain view; (2) conveniently accessible to or found on the same side of the car as the accused; (3) in a place owned, rented, possessed , or controlled by the accused; (4) in a car driven by the accused; or (5) found in an enclosed space; whether (6) the odor of narcotics was present; (7) drug paraphernalia was present, in view of , or found on the accused; (8) the accused’s conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements); (9) the accused had a special relationship to the drug; (10) the accused possessed other contraband or narcoti cs when arrested; (11) the accused was under the influence of narcotics7

when arrested; (12) affirmative statements connected the accused to the drug; (13) the accused was present when the search was conducted and whether others were present at the time of the search; (14) the accused was found with a large amount of cash; (15) the amount of contraband found was large enough to indicate that the accused knew of its existence; and (16) the accused’s relationship to other persons with access to where the drugs were found. Evans , 202 S.W.3d at 162, n.12; Roberson , 80 S.W.3d at 735, n.2; Villegas v. State , 871 S.W.2d 894, 897 (Tex. App.

— Houston [1st Dist.] 1994, pet. ref’d). These are simply some factors that may circumstantially establish the sufficiency of th e evidence to prove a knowing “possession,” but they are not a litmus test. Evans , 202 S.W.3d at 162, n.12. Each case must be examined on its own facts. Roberson , 80 S.W.3d at 73 6

. Because the syringe containing the methamphetamine was not found on Tate ’s person, linking factors must be present, sufficient to create a “logical force” to prove that Tate committed the offense. See id

. at 735. On the record of this case, the only link between Tate and the syringe was that Tate was the driver and purported owner of the vehicle in which the syringe was foun d in a location that would have been conveniently accessible to both Tate and Proctor

. 3 This, without more, is insufficient to support Tate’s conviction. See id

. at 736. (“[A]ppellant’s status as the dri ver of the car is insufficient on its own to prove

3 The s yringe was not fingerprinted.8

possession, but may help show legal sufficiency if combined with other evidence.”) The dissent argues that the syringe’s location “in plain view in an open cubby in the car’s console ” 4 that was “convenient ly accessible to Tate” is sufficient in addition to his vehicle ownership claim to link the syringe to him. However, in order to constitute a link, the evidence must logically connect the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed it. Evans , 202 S.W.3d at 161

– 62; Roberson , 80 S.W.3d at 735. Missing from the dissent’s logical equation is any evidence that at the time Tate was removed from the car, the syringe was located in the compartment wher e it was later found. Although it was found in plain view after Proctor and Hale exited the vehicle, looking at the evidence in the light most favorable to the verdict, at least five minutes had elapsed before the women were removed from the vehicle, duri ng which time they were moving around so much that Sergeant Beckham admitted he could not keep a proper eye on them and could not tell what they were doing. 5

4 There is no evidence that Sergeant Beckham saw the syringe from his vantage point when he first approached the vehicle or after removing Tate to the rear of the vehicle, all of which occurred during daylight hours

.

5 Also absent from the record is any evidence that the syringe was not in the possession of Proctor or Hale when Tate left the vehicle, which would have supported a logical inference that the syringe was in the com partment prior to Tate’s removal from the vehicle. Although Sergeant Beckham testified that he searched their purses, there is no evidence indicating when he performed that search, except that it occurred prior to Russell’s search, nor can the time be9

The place where officers found the syringe was within reach of both Tate and Proctor

. Although found in plain view at the time of inventory, there is no evidence that the syringe was in plain view or accessible to Tate at any time when Tate was inside the vehicle. 6 The facts of this case bear a striking resemblance to the facts presented in Rober son , in which the court held that evidence is not legally sufficient when the S tate merely shows that a defendant was driving a vehicle containing narcotics. 80 S.W.3d at 736. In that case, Roberson was the driver of a vehicle containing two other passen gers and 24 grams of cocaine. Id . at 741. The police discovered the drugs in the vehicle near where one of the passengers was seated, and upon arrest, Roberson reportedly displayed a “consciousness of guilt.” Id. Nothing else linked Roberson to the coc aine

— he was not under the influence at the time of arrest; there was no drug odor in the car; he was cooperative and made no furtive gestures ; the cocaine was not found until almost

inf erred from other facts in the record, since Sergeant Beckham’s testimony on that point was not presented in the context of a sequential or chronological recitation of t he events as they transpired. Without that context, or any testimony as to when in the series of events the search of purses occurred, logic will not permit an inference that because he searched their purses, he did so at any particular point in the sequence.

6 And, contrary to what the dissent considers a reasonable inference, Tate’s testimo ny with regard to what he probably would have done if he had known about the syringe is purely speculative and does not constitute evidence to link Tate to the syringe. See Hernandez v. State , 867 S.W.2d 900, 904 (Tex. App.

— Texarkana 1993, no pet.) (“Evid ence affirmatively connecting the accused to the contraband must amount to more than mer e conjecture or speculation.”)10

twenty minutes had passed, during which time the two passengers remained i n the vehicle; and no statements were made at the scene regarding the cocaine. Id. at 742. This evidence, the court held, even in the light mo st favorable to the verdict, “d[id] not create the logical force necessary to allow a rational juror to find, be yond a reasonable doubt, that [Roberson] had knowledge of the presence of cocaine.” Id. Although we are required to resolve any conflicting inferences in favor of the verdict, there can be no logical inferences from a complete gap in proof

— either direct o r circumstantial

— as to whether the syringe was in that compartment at any point in time when Tate was also present in the vehicle. There is no evidence in this record that the syringe was ever in plain view or accessible to Tate. On this record, the only link between Tate and the syringe at the time he was removed from the vehicle was that he was the driver and self

- purported owner of the vehicl e. 7 Therefore, a rational juror could not have determined

7 We reject the dissent’s contention that Tate’s act of having his driver’s license and proof of insurance out and ready when Officer Bec kham approached the vehicle is another link to or any evidence of possession because this behavior is equally consistent with being a conscientious and law

- abiding driver. Cf. Bland v. State , No. 01

- 13

- 00303

- CR, 2014 WL 4855024, at *3 (Tex. App.

— Houston [ 1st Dist.] Sept. 30, 2014, no pet.) (mem. op., not designated for publication) (stating that consciousness of guilt may be shown by flight, excessive nervous behavior, or an unsettled demeanor); Wallace v. State , No. 02

- 10

- 00196

- CR, 2011 WL 4415024, at *2 (Tex. App.

— Fort Worth Sept. 22, 2011, no pet.) (mem. op., not designated for publication) (stating that one of the links between appellant and the 6.36 grams of cocaine found in the driver’s side11

beyond a reasonable doubt from the evidence that Tate intentionally or knowingly exercised care, custody, management, or control over the syringe such as to constitute “possession” of the methamphetamine that was later found inside the vehicl e. 8 Because we so hold, we sustain Tate’s sole point.
IV. Conclusi on Because the evidence is insufficient to support Tate’s guilt, 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

– 25, 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/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE PANEL: GARDNER, WALKER, and SUDDERTH , JJ. WALKER, J. , filed a dissenting opinion. PUBLISH
DELIV ERED: May 14, 2015

door pocket of his vehicle was his making furtive gestures w hen the officer asked for his driver’s license and proof of insurance).

8 In conducting the sufficiency analysis, we do not focus “on [our] own view of what was not proved,” as the dissent suggests. Rather, we hold that , considering all of the evidence in this record, when viewed in the light most favorable to the verdict, the evidence simply does not constitute a “logical force” sufficient to prove possession by Tate.

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00 179 - CR

DALLAS CARL TATE APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

TRIAL COURT NO. 2013

- 0163M

- CR

---------- 

### DISSENTING OPINION

---------- This is a s traightforward possession case requiring a straightforward sufficiency analysis under Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) , which t he majority fails to perform . Because the majority ’s analysis focuses on the links not proven by the State instead of on the link s that were proven by the State; substitutes the majority ’s own weight

- and credibility

- of

- the

evidence determinations for th ose of the jury; fails to view the evidence in the2

light most fa vorable to the judgment ; and disregards controlling , well

- established precedent from the Texas Court of Criminal Appeals concerning what evidence will sufficiently link a defendant to contraband found in a vehicle , I am compelled to dissent. The lynchpin o f the majority ’s reverse

- and

- acquit sufficiency analysis is the absence of evidence that Officer Beckham observed the syringe of methamphetamine in the cubbyhole 1 in the front console of the car when he approached the driver’s

- side door of the car after he had stopped Tate. From the absence of this evidence , the majority extrapolates that the syringe of methamphetamine must not have actually been located in th e cubbyhole when Tate was stopped and instead must have been placed there by one of the female
pas sengers 2 during an approximately five

- minute interval after Tate was asked to step out of the car and before the women were asked to step out of the car. The errors in this analysis by the majority are threefold. First, instead of analyzing the links that were prove n by the State, the majority focuses on its own view of what was not prove n

. This type of sufficiency analysis in possession cases has been expressly disavowed by the Texas Court

1 Officer Beckham testified that h e found the syringe in “the cubbyhole underneath the air conditioner, heate r controls in that vehicle.”

2 The two female passengers were friends of Tate ’s . Bonita Proctor, the front

- seat passenger, was Tate’s former girlfriend; Sherita Yvonne Hale, the b ack

- seat passenger, was a friend of Proctor’s. The trio was on the way to Proctor’s house at the time of the stop.3

of Criminal Appeals. Compare Evans v. State , 202 S.W.3d 158, 164 (Tex. Crim. App. 2006) (explaining that court of appeals ’s sufficiency analysis erroneously discussed links that might have connected the defendant to the drugs but did not exist in the case and disregarded the links that were prove n by the State ) , with
T ate v. State , No. 02

- 14

- 00179

- CR, slip op. at 8

– 9 (Tex. App.

–– Fort Worth May
14 , 2015, no pet. h

. ) (conducting sufficiency analysis by discussing links that might have connected Tate to the drugs but did not exist in the case and disregarding the links tha t were proven by the Stat e
–– “there is no evidence that the syringe was in plain view o r accessible to Tate”; “ [a] lso absent from the record is any evidence that the syringe was not in the possession of Proctor or Hale ”; “ there is no evidence indicating whe n he [Officer Beckham] performed that search [of the purses] ” ; “[t]here is no evidence that Sergeant Beckham saw the syringe from his vantage point when he first approached the vehicle”; etc .) ; see also Brown v. State , 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (explaining that in light of court of criminal appeals’s abandonment of “outstanding reasonable hypothesis methodology” in 1991, defendant’s link to drugs he allegedly possessed “need no longer be so strong that it excludes every other outstanding re asonable hypothesis except the defendant’s guilt”). Second, although reciting the proper standard of review, the majority fails
to apply it; the majority fails to view the evidence in the light most favorable to the jury’s verdict and instead substitut es its own weight and credibility determinations of the evidence for that of the jury. See Isassi v. State , 330 S.W.3d 633, 6384

(Tex. Crim. App. 2010) (reversing court of appeals ’s judgment of acquittal because court of appeals ’s sufficiency analysis did not view the evidence in the light most favorable to the jury’s verdict or give deference to the jury’s weight

and credibility

- of

- the

- evidence determinations). For example, the majority fails to mention that Tate testified that he had his driver’s licens e and proof of insurance out and ready when Officer Beckham approached the dr iver’s

- side window of the

car. Tate also testified that Officer Beckham’s first words to Tate were, “ Step out of the vehicle .” 3 A reasonable inference exists that the syringe of methamphetamine was in the cubbyhole at the time Officer Beckham stopped Tate for outstanding warrants but that Officer Beckham did not notice it during the extremely short time he stood near the driver’s

- side window before he asked Tate to get out of the car and escorted Tate to a position at the rear of the vehicle. Also , the syringe of methamphetami ne was admitted into evidence. The jury was f r ee to infer from viewing the syringe that it was small enough that it could roll deep enough within the cubby hole that it would not be visible to a person standing at the driver’s

- side window. Only Tate testified that it would be

3 On direct examination Tate testified: Q. And did the officer speak to you when he arrived at your vehicle? A. Yes. I think I already ha d my license and insurance ready. He walked up and immediately asked me to step out of the car.5

visible; the jury was free to not believe his testimony. See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied , 488 U.S. 872 (1988). Even more importantly, t he jury rejected the very same view of the evidence that the majority accepts. At trial, Tate put forward his theory that one of the female passengers must have place d the syringe in the cubbyhole after he ha d exited the vehicle . Tate testif ied that the syringe could not have been in the cubbyhole when Officer Beckham stopped him because if it had been there , he ( Tate ) would have gotten rid of it. Tate testified: Q. Okay. Now, Mr. Tate, when you were remov ed from the car, were you aware that there was a syringe in your car? A. No, ma’am. Q. If you had a syringe, what would your actions have been when you knew the police officer was pulling you over? A. If I had had one? Q. Yes, sir. A. I’ m not sur e. I probably would hav e thrown it out or, at least, sq uirted the contents out of it

. I don’t know. I wo uldn’t

-- I would hate to answer that without being put in that position. Q. So what you’re saying is, you basically would not have left it in a c enter compartment open to plain view if you had had it? A. Absolutely not. Tate testified that he had learned about the syringe of methamphetamine found in his car after he was placed in jail . He said that he won dered to himself which of the female p a ssengers had placed it there.6

On cross

- examination, the prosecutor undermined Tate’s theory by questioning why Tate

–– who admitted he had a prior conviction for possession

–– would dispose of the syringe if he had known about it, but Tate’s two female f riends

— whom Tate testified also had prior possession convictions

–– would n ot have disposed of the syringe but would instead have set him up. Tate testified

on cross - examination: Q. An d you said you were not aware of a syringe. You would have thrown it ou t or squirted its contents if you had been aware of it? A. Yes, ma’am. Q. You would have hidden it from police? A. Hidden the syringe? Q. Yes. A. I wouldn’t say hide it. I just didn’ t want it

- - wouldn’t have it

-- wouldn’t have had it on me. Q . So you would have planted it on someone else? A. Oh, no. Q. No? You would have gotten rid of the evidence so you wouldn’ t

-- A. True. Q.

-- have been charged; is that correct? A. Correct. Q. So what you’re claiming is, even though you woul d have thrown the syringe somewhere or squ irted the contents out or put it somewhere where it couldn’t easily be seen, you’re saying that the o ther two women would have put it somewhere where it could have7

easily been seen instead of doing the same thing [ that you would have done]; is that right? Officer Beckham testified that after the stop, the women consented to a search of their purses ; he searched the purses and found no contraband. The jury could have reasonably inferred that the women would not carry a syringe with a needle on their person or in their pockets and that because the syringe was not found in the women’s purses, it was in the cubbyhole all along . In short, the majority ’s analysis fails to apply the proper Jackson v. Virginia standar d of review; the majority ’s analysis does not view the evidence in the light most favorable to the jury’s verdict and does not defer to the jury’s weight

- and credibility

- of

- the

- evidence determinations. See Evans , 202 S.W.3d at 164

. 4 Third, the law is we ll

- settled that links like the links that were prove n by the State in this case are sufficient to meet the State’s burden of establishing that Tate exercised actual care, custody, control, or management over the syringe of methamphetamine and knew that th e syringe contained methamphetamine. See Tex. Health & Safety Code Ann. § 481.002(38) (West Supp. 2014 ) (setting forth

4 The court of criminal appeals in Evans reversed the court of appeals ’ s judgment of acquittal in a possession case because:

T he jury presumably went throug h ex actly the same weighing of evidence, credibility assessments, and alternative

- explanation exercises [as that set forth in the court of appeals’ s opinion] and came to the opposite conclusion, i.e ., appellant was connected to the drugs.

. . . Under federal and Texas law, juries trump both trial and appellate judges on weight

- of

- evidence determinations. 202 S.W.3d at 164.8

definition of possession)

. V iewed in the light most favorable to the jury’s verdict, the evidence establishes that the syringe of metha mphetamine was found in plain view in an open cubby hole in the car’s console , was convenien tly accessible 5 to Tate

–– even Tate testified that the cubbyhole was accessible to the drive r of the car, was found in a car that Tate claimed to own, and was found i n a car driven by Tate

. See Evans , 202 S.W.3d at 162 n. 12 (listing these possible links) ; Roberson v. State , 80 S.W.3d 730, 735 n.2 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d) (same) ; Villegas v. State , 871 S.W.2d 894, 897 (Tex. App.

— Hou ston [1st Dis t.] 1994, pet. ref’ d) (same)

. Viewed in the light most favorable to the jury’s verdict, t he evidence also establishes that about five minutes after Tate was asked to step out of the vehicle, the female passengers were asked to step out of the vehicle ; tha t before the female passengers were asked to step out of the vehicle, their purses were searched and found to contain no contraband ; that the female passengers themselves were subsequently searched by Trooper Rachel Russell when she arrived and that no con traband was found ; and that although the front

- seat passenger was moving around a lot

5 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. Robinson v. State , 174 S.W.3d 320, 326 (Tex. App.

— Hou ston [1st Dist.] 2005, pet. ref’ d)

.9

in the car before she was asked to step out of the vehicle, 6 Officer Beckham did not observe her reach for ward toward the front console near the cubbyhole. Thus , a reaso nable inference exists that one of the female passengers did not remove the syringe of methamphetamine from her purse or off of her person and place it in the cubbyhole and that the syringe was in the cubbyhole all along

. Tate himself provided testimony al lowing the jury to reasonably infer that ,
even if one of the women had possessed the syringe of methamphetamine, she would have hidden it or ejected its contents, not placed it in plain view in the car. The logical force of the combined evidence and reaso nable inferences therefrom

–– when viewed in its totality in the light most favorable to the verdict and with deference to the jury’s weight

- and credibility

- of

- the

- evidence determinations

–– is sufficient to enable a rational trier of fact to find beyond a

re asonable doubt that Tate exercised actual care, custody, control , or management of the syringe of methamphetamine and that his relationship to it was more than merely fortuitous

. 7 See Tex. Health & Safety Code Ann.

6 Proctor, the front

- seat passenger , did not testify, so no direct explanation exists in the record for her movement within the car; however, Officer Beckham testified that there was a dog in the car with the trio.

7 I cannot agree with the majority ’s assertion that the facts here bear a striking resemblance to the facts in Roberson , 80 S.W.3d at 741

– 42. In Roberson , the drugs were not found in an area of the car conveniently accessible to the defendant

- driver , like the syringe was conveniently accessible to Tate as the driver of the car. Id . (explaining th at a “full cookie” of crack cocaine was found on the passenger side floorboard near the door and that a “half cookie” of crack cocaine was found on the roadway a few inches from the car on the passenger side ). Additionally, in Roberson , evidence existed l inking only the10

§ 481.002(38); see also , e.g. , Evans , 2 02 S.W.3d at 163 ( reversing acquittal judgment and noting that evidence

— sixteen grams of cocaine was located on coffee table one foot directly in front of where defendant was sitting

— constituted “two extremely st r ong ‘presence’ and ‘proximity’ links ” ) ; Des hong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) (holding evidence sufficient to support driver’s possession conviction based on baggie of marijuana found in defendant’s

car in plain view on floor between driver’s seat and car door despite evidenc e that defendant’s car was used by a business as a delivery car). 8

front

- seat passenger to the cocaine, not the defendant

- driver ; while here, evidence exists linking only Tate to the syringe of methamphetamine, not the front

- seat passenger. See id . (explaining that the evidence linked the front

- seat passe nger to the cocaine because the front

- seat passenger a ppeared to be under the influence of drugs, was sitting where the “full cookie” of cocaine was found, and had exited the vehicle near where the “half cookie” of cocaine was found, and the driver never w ent to the passenger side of the exterior of the vehicle during the stop and appeared sober ).

8 The legal analysis concerning the sufficiency of the evidence to establish that a driver, driving a car he claims to own, ex ercised actual care, custody, contr ol , or management over contraband found in his car in a location that is easily accessible to the driver coupled with other circumstantia l evidence is so well

- established that many cases on this issue are not published. See, e.g. , Otto v. State , No. 08

- 0 4

- 00249

- CR, 2005 WL 194 0276, at *5 (Tex. App.

— El Pa so Aug. 11, 2005, no pet.) ( not designated for publication) (holding evidence legally sufficient to support driver’s possession conviction based on evidence that he told officer he was the owner of the vehi cle and that inventory search revealed contraband underneath plastic molding of gear shift console

— a location in close proximity to and easily accessible by driver; court focused on the degree to which this evidence linked driver to contraband and declined to focus on the number of links or the lack of additional links , such as the absence of furtive gestures, incriminating statements, drug paraphernalia, fingerprints, weapons, or drugs found on driver’s person or that passenger had access to vehicle) ; McCl anahan v. State , No. 05

- 03

- 00115

- CR, 2003 WL 2 2663801 , at *2 (Tex. App.

–– Dallas Nov. 12, 2003, pet. ref’d) (not designated for publication) (holding evidence11

For all of these reasons, I respectfully dissent. I would affirm the judgment of the trial court. /s/ Sue Walker SUE WALKER JUSTICE PUBLISH
DE LIVERED: May 14, 2015

sufficient to support driver’s possession conviction based on baggie of cocaine found in defendant ’s car on driver’s seat although two passengers were in the car); Fowler v. State , No. 08

- 01

- 00409

- CR, 2002 WL 1732598 , at *3 (Tex. App.

–

– El Pas o July 25, 2002, no pet.) ( not designated for publication) (holding evidence sufficient to support driver’s poss ession conviction based on marihuana found in cupholder in center console of defendant’s car although front

- seat passenger was in the car) ; see also Parra v. State , No. 03

- 04

- 00643

- CR, 2006 WL 1649029, at *4

– 5 (Tex. App.

— Austin June 15, 2006, no pet.) (mem . op., not designated for publication) (holding evidence legally sufficient to support driver’s conviction because the jury, as the exclusive judge of the credibility of the witnesses, was entitled to believe officer’s testimony that he was watching the pa ssengers who remained in the car after appellant was arrested and placed in patrol car and that officer would have seen any attempt by the passengers to stash the drugs in the manner and location where they were found).