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

CLERK
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The partiesto the trial court’s judgment are the State of Texas and Appellant, Dallas

Carl Tate.

*The case was tried before the Honorable Jack A. McGaughey, 97 Judicial District th

Court, Montague County, Texas.

*Counsel for Appellant at trial was Jeannette Richmond, Richmond Law Office, 900

8th Street, Suite 115, Wichita Falls, Texas 76301.

*Counsel for Appellant on appeal was Lynn Switzer, P.O. Box 2040, 406 N. Grand

Ave., Suite 108, Gainesville, Texas 76241.

*Counsel for the State at trial was Paige Williams, District Attorney, and Casey Hall,

Assistant District Attorney, 97th Judicial District, P.O. Box 55, Montague, Texas

76251.

*Counsel for the State on appeal was Zachary Renfro, Special Prosecutor, 304 Clay

St., Nocona, Texas 76255.

*Counsel for the State before this Court is John R. Messinger, Assistant State

Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.

i
TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Did the court of appeals ignore multiple rules of sufficiency review and

substitute its judgment for the jury’s when it held there was insufficient

evidence connecting appellant to the contraband found in plain view in the

center console of a car that he owned and was driving?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX (Opinion of the Court of Appeals, Dissenting Opinion)

ii
INDEX OF AUTHORITIES

Cases

Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . 8

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 7

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . 2, 4, 7, 8

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . 5

Jackson v. Virginia, 443 U.S. 307 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . 7

Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 7

Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . 7

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 6

Tate v. State, 02-14-00179-CR, __S.W.3d__, 2015 Tex. App. LEXIS 4941

(Tex. App.–Fort Worth May 14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . passim

Statutes and Rules

TEX. CODE CRIM. PROC. art. 38.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. APP. P. 66.3(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii
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

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure. 

STATEMENT REGARDING ORAL ARGUMENT

 The State does not request oral argument.

STATEMENT OF THE CASE

Appellant was convicted of possession of a controlled substance and sentenced

to two years in state jail. The court of appeals held that the evidence was legally

1

 4 RR 16. 1

1
insufficient to connect appellant to the methamphetamine found in his vehicle.

STATEMENT OF PROCEDURAL HISTORY

On May 14, 2015, the court of appeals reversed appellant’s conviction and

rendered a judgment of acquittal in a published opinion. Justice Walker wrote a

2

dissenting opinion. No motion for rehearing was filed. After this Court granted an

extension, the State’s petition is due on June 29, 2015.

GROUND FOR REVIEW

Did the court of appeals ignore multiple rules of sufficiency review and

substitute its judgment for the jury’s when it held there was insufficient

evidence connecting appellant to the contraband found in plain view in the

center console of a car that he owned and was driving?

ARGUMENT AND AUTHORITIES

The so-called “affirmative links” rule protects an innocent bystander from

conviction for possession merely because of his fortuitous proximity to someone

else’s contraband. However, presence or proximity, when combined with other

3

evidence, may well satisfy the State’s burden of proof. Shortly after appellant was 4

removed from his vehicle, an officer discovered a syringe of methamphetamine in

plain view under the air conditioning controls within reach of the driver’s seat. Was

Tate v. State, 02-14-00179-CR, __S.W.3d__, 2015 Tex. App. LEXIS 4941 (Tex. App.–Fort

2

Worth May 14, 2015). 

 Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006). 3

 Id. at 162. 4

2
appellant’s proximity to where the syringe was found merely fortuitous?

Facts

Appellant was driving his vehicle when he was stopped by Officer Beckham

for outstanding warrants. There was one passenger in the front and one in the back.

5 6

The passengers remained inside for roughly five minutes after appellant was

removed. From where he was standing with appellant, Beckham could see the front 7

passenger moving, but he did not see her reach over towards the area of the airconditioning controls. He removed the passengers after requesting a unit to transport 8

appellant to jail. He then impounded the vehicle and conducted an inventory

9

pursuant to a written policy. Beckham found a syringe containing .24 grams of 10

methamphetamine in an open compartment underneath the radio and climate

controls. It was in plain view and directly to the right of the driver’s seat.

11 12

 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. 10

 3 RR 18, 48, 64. 11

 3 RR 18, 28, 60, 63. 12

3
Opinion below

The court of appeals reversed the jury’s verdict of guilt. It properly stated the

deferential standard of review for sufficiency of the evidence. It cited heavily from

13

Evans v. State, the style case for using circumstantial evidence to link a defendant to

a controlled substance. It compiled a non-exhaustive list of 16 potential links. 14 15

Importantly, it reiterated that the number of links is not as important as their “logical

force” and the absence of various links is not evidence of innocence to be weighed

against the links presented. Unfortunately, it did not follow these rules: 16

The dissent argues that the syringe’s location “in plain view in an open cubby

in the car’s console” that was “conveniently accessible to Tate” is sufficient in

addition to his vehicle ownership claim to link the syringe to him. . . . 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 where it was

later found. . . . [A]t least five minutes had elapsed before the women were

removed fromthe vehicle, during which time they were moving around so much

that [the officer] admitted he could not keep a proper eye on them and could not

tell what they were doing.

17

It concluded:

[T]here can be no logical inferencesfroma complete gap in proof—either direct

Slip op. at 4-5 (citing, inter alia, Jackson v. Virginia, 443 U.S. 307 (1979), and TEX. CODE

13

CRIM. PROC. art. 38.04 (“The jury, in all cases, is the exclusive judge of the facts proved, and of the

weight to be given to the testimony . . . .”).

 Slip op. at 5-7. 14

 Slip op. at 6-7. 15

 Slip op. at 6. See Evans, 202 S.W.3d at 162. 16

 Slip op. at 8 (citations omitted). 17

4
or circumstantial—as to whether the syringe was in that compartment at any

point in time when Tate was also present in the vehicle. . . .

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 vehicle.

18

Argument

The court of appeals ignored basic rules of sufficiency review on its way to

acquitting appellant. 

Alternative reasonable hypothesis

The court of appeals is correct that, “absent from the record is any evidence

that the syringe was not in the possession of [the passengers] when Tate left the

vehicle . . . .” But however reasonable this innocent explanation may be, focusing 19

on the existence of an “outstanding reasonable hypothesis inconsistent with the guilt

of the accused” effectively repudiates the jury’s role as the exclusive judge of the

facts and places the reviewing court in the posture of a “thirteenth juror.” 

20

Joint possession

Moreover, a hypothesis based on exclusive possession by either appellant or

a passenger ignores the rule that possession need not be exclusive. “The mere fact

that a person other than the accused might have joint possession of the premises does

Slip op. at 10. Appellant testified that the vehicle, “wasn’t in my name, but it did belong to 18

me. . . . I hadn’t -- hadn’t had any paperwork transferred yet, but it did belong to me.” 3 RR 60.

 Slip op. at 8 n.5 19

 Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). 20

5
not require the State to prove that the defendant had sole possession of the

contraband, only that there are affirmative links between the defendant and the drugs

such that he, too, knew of the drugs and constructively possessed them.”21

Ignoring or re-weighing evidence

And, in fact, appellant did not jointly possess the vehicle in which the syringe

was found. Contrary to the court of appeals’s view, appellant is not the “selfpurported owner.” When viewed in the light most favorable to the verdict, appellant

simply is the owner. If a qualifier is necessary, he is the “admitted owner.” 22

The court of appeals also failed to acknowledge the presence of links from its

list or downplayed their value. Six of the court’s links are present: “the contraband

was (1) in plain view; (2) conveniently accessible to . . . the accused; (3) in a place

owned, rented, possessed, or controlled by the accused; (4) in a car driven by the

accused; (7) drug paraphernalia was present; . . . [and] (13) the accused was present

when the search was conducted.” The court of appeals held that plain view and

23

convenient accessibility mean nothing without direct evidence that the syringe was

there when appellant in the vehicle. 

24

 Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005). 21

 Thus it is assumed the jury disregarded one passenger’s statement to Beckham that she

22

owned the vehicle. 3 RR 15.

 See slip op. at 6-7. 23

 Slip op. at 8. 24

6
Absent and circumstantial evidence

In the court’s view, what was missing were fingerprints or evidence that

Beckham saw the syringe when appellant was still in the vehicle. This Court has

25

repeatedly warned against focusing on missing evidence. Moreover, circumstantial 26

evidence is as probative as direct evidence and can be sufficient on its own to

establish guilt. It is not necessary that every fact, like fingerprints, point directly 27

and independently to the defendant’s guilt. And, far from being a prerequisite to 28

conviction, a defendant’s presence vel non at the time of the search is merely one

circumstance to be considered.

29

Conclusion

Appellant testified that the syringe belonged to one of the passengers and was

not in the console when he was in the car. The court of appeals acquitted appellant

30

based on that possibility. However, “The jury presumably went through exactly the

 Slip op. at 7 n.3, 8 n.4. 25

See, e.g., Murray v. State, 457 S.W.3d 446, 449 (Tex. Crim. App. 2015); Merritt v. State, 368 26

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). 27

 Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). 28

 Evans, 202 S.W.3d at 162 n.12; see also slip op. at 7. It might be inferred that the court of 29

appeals defines “presence” as a suspect’s immediate proximity to the contraband at the time it is

discovered, as it is undisputed that appellant was in the vehicle minutes before the syringe was

found.

 3 RR 63-65. 30

7
same weighing of evidence, credibility assessments, and alternative-explanation

exercises 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.”31

From beginning to end, the court’s analysis is a vast departure from the usual

course of sufficiency review. The dissent is correct: this is a straightforward 32

possession case. Had this search taken place in a house while the owner was gone,

33

appellant’s conviction would have been affirmed. The result should be no different

34

here. 

 Evans, 202 S.W.3d at 164. 31

 TEX. R. APP. P. 66.3(f). 32

 Dissent at 1 (Walker, J., dissenting). 33

 See, e.g., Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1974) (op. on rhr’g), in

34

which the lessee, Dean, was absent when the house was searched but Abercrombie and another were

present. Id. at 586. This Court held, “While Dean was not present at the time of the search, the

house was under his control, marihuana was literally everywhere, and he or someone in the house

had accepted the marihuana brought by [a neighbor] after Dean’s conversation with him. We

conclude the evidence was sufficient to support the verdict of guilty as to both Dean and

Abercrombie.” Id. at 586-87 (emphasis added).

8
PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and reverse the decision of the Court of

Appeals.

 Respectfully submitted,

 LISA C. McMINN

 State Prosecuting Attorney

 Bar I.D. No. 13803300

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

 P.O. Box 13046

 Austin, Texas 78711

 John.Messinger@SPA.Texas.gov

 512/463-1660 (Telephone)

 512/463-5724 (Fax)

9
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 2,451 words.

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

CERTIFICATE OF SERVICE

The undersigned certifies that on this 29 day of June, 2015, the State’s th

Petition for Discretionary Review was served electronically through the electronic

filing manager or e-mail on the parties below. 

Zachary Renfro

Special Prosecutor

304 Clay St.

Nocona, Texas 76255

renfrolawoffice@gmail.com

Paige Williams

District Attorney

P.O. Box 55

Montague, Texas 76251

paige.williams@co.montague.tx.us

Lynn Switzer

P.O. Box 2040

406 N. Grand Ave., Suite 108

Gainesville, Texas 76241

lynn.switzer@thesolawfirm.com

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

10
APPENDIX
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00179-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

----------

OPINION

----------

I. Introduction

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 possessed 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 Sherita 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 Tate had on his person, handcuffed him, contacted dispatch to 

request transportation, and then placed Tate into 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 Tate to jail.

From where he was standing during this process, Sergeant Beckham said 

that he had a clear view of Proctor, the front-seat passenger, and he did not see 

her reach toward the air conditioning unit or in that general direction. However, 

he also testified that, because Proctor was moving around a lot and he could not 

tell exactly what she was doing, he asked both women to step out of the vehicle. 

According to the officer, the women exited the vehicle approximately five minutes 

after he had removed 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 

female passengers had been moving around a lot in the vehicle and he 

requested that she search them.1Trooper Russell did so, and found no 

contraband. 

Although the vehicle was not registered in his name and he was unable to 

provide any paperwork demonstrating 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 Department’s written impoundment policy, Sergeant 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 

 

1Sergeant 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 compartment, he did not believe Hale, the backseat passenger, could.2

 

At the conclusion of the trial, the jury found Tate guilty of possession of a 

controlled substance, namely, methamphetamine, in an amount of less than one 

gram. The trial court sentenced 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 trier 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). This standard gives full play to the 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 credibility 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 inferences 

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 through 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 contraband is not found on the 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.—Houston [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 813, 

819 (Tex. App.—Houston [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.—Houston [1st Dist.] 

2008, pet. ref’d). 

Texas courts have identified 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 

narcotics when arrested; (11) the accused was under the influence of narcotics 
7

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 the 

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 736.

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 found 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 driver of the car is insufficient on its own to prove 

 

3

The syringe 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 “conveniently 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 where 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, during 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. 

5Also 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 compartment 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 be 
9

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 

Roberson, in which the court held that evidence is not legally sufficient when the 

State 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 passengers 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 cocaine—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 

 

inferred 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 the 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.

6And, contrary to what the dissent considers a reasonable inference, Tate’s 

testimony 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.) (“Evidence affirmatively connecting the accused to the 

contraband must amount to more than mere conjecture or speculation.”) 
10

twenty minutes had passed, during which time the two passengers remained in 

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 most favorable to the 

verdict, “d[id] not create the logical force necessary to allow a rational juror to 

find, beyond 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 or 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 vehicle.7Therefore, a rational juror could not have determined 

 

7We reject the dissent’s contention that Tate’s act of having his driver’s 

license and proof of insurance out and ready when Officer Beckham 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 side 
11

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 

vehicle.8 Because we so hold, we sustain Tate’s sole point.

IV. Conclusion

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

DELIVERED: May 14, 2015

 

door pocket of his vehicle was his making furtive gestures when 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. 02-14-00179-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 straightforward possession case requiring a straightforward 

sufficiency analysis under Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

2789 (1979), which the majority fails to perform. Because the majority’s analysis 

focuses on the links not proven by the State instead of on the links that were 

proven by the State; substitutes the majority’s own weight- and credibility-of-theevidence determinations for those of the jury; fails to view the evidence in the 
2

light most favorable 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 of the majority’s reverse-and-acquit sufficiency analysis is the 

absence of evidence that Officer Beckham observed the syringe of 

methamphetamine in the cubbyhole1in 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 the cubbyhole when 

Tate was stopped and instead must have been placed there by one of the female 

passengers2during 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 proven by the State, the 

majority focuses on its own view of what was not proven. This type of sufficiency 

analysis in possession cases has been expressly disavowed by the Texas Court 

 

1Officer Beckham testified that he found the syringe in “the cubbyhole 

underneath the air conditioner, heater 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 

back-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 proven by the State), with 

Tate 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 that were proven by the State––“there is no evidence that 

the syringe was in plain view or 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 when 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 reasonable 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 substitutes its own weight and credibility determinations 

of the evidence for that of the jury. See Isassi v. State, 330 S.W.3d 633, 638 
4

(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 weightand credibility-of-the-evidence determinations). For example, the majority fails to 

mention that Tate testified that he had his driver’s license and proof of insurance 

out and ready when Officer Beckham approached the driver’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 methamphetamine was admitted into evidence. The 

jury was free to infer from viewing the syringe that it was small enough that it 

could roll deep enough within the cubbyhole that it would not be visible to a 

person standing at the driver’s-side window. Only Tate testified that it would be 

 

3On direct examination Tate testified:

Q. And did the officer speak to you when he arrived at your 

vehicle?

A. Yes. I think I already had 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, the 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 placed the syringe in the cubbyhole after he 

had exited the vehicle. Tate testified 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 removed 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 sure. I probably would have thrown it out or, at least, 

squirted the contents out of it. I don’t know. I wouldn’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 

center 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 wondered to himself which 

of the female passengers 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 

friends—whom Tate testified also had prior possession convictions––would not 

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

on cross-examination:

Q. And you said you were not aware of a syringe. You would have 

thrown it out 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 would have thrown 

the syringe somewhere or squirted the contents out or put it

somewhere where it couldn’t easily be seen, you’re saying that the 

other two women would have put it somewhere where it could have 
7

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 standard 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 well-settled that links like the links that were proven 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 the 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:

The jury presumably went through exactly 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). Viewed in the light most favorable to the jury’s verdict, 

the evidence establishes that the syringe of methamphetamine was found in 

plain view in an open cubbyhole in the car’s console, was conveniently 

accessible5to Tate––even Tate testified that the cubbyhole was accessible to the 

driver of the car, was found in a car that Tate claimed to own, and was found in 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.—Houston [1st Dist.] 1994, pet. ref’d) (same). Viewed in the light most 

favorable to the jury’s verdict, the 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; that 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 contraband 

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.—

Houston [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 forward toward the front console near the cubbyhole. 

Thus, a reasonable 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 allowing 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 reasonable 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 

reasonable 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. 

 

6Proctor, 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 that 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 linking only the 
10

§ 481.002(38); see also, e.g., Evans, 202 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 strong ‘presence’ and ‘proximity’ links”); Deshong 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 evidence

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 

passenger to the cocaine because the front-seat passenger appeared 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 went 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, exercised actual care, custody, 

control, or management over contraband found in his car in a location that is 

easily accessible to the driver coupled with other circumstantial evidence is so 

well-established that many cases on this issue are not published. See, e.g., Otto 

v. State, No. 08-04-00249-CR, 2005 WL 1940276, at *5 (Tex. App.—El Paso 

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 vehicle 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); McClanahan 

v. State, No. 05-03-00115-CR, 2003 WL 22663801, at *2 (Tex. App.––Dallas 

Nov. 12, 2003, pet. ref’d) (not designated for publication) (holding evidence 
11

For all of these reasons, I respectfully dissent. I would affirm the judgment 

of the trial court.

/s/ Sue Walker

SUE WALKER

JUSTICE

PUBLISH

DELIVERED: 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 Paso July 25, 2002, no pet.) (not designated for publication) (holding 

evidence sufficient to support driver’s possession 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 

passengers 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).