Fisher, Lawan Navail, PD-0191-15

Background

Police executed a search warrant at a Dallas apartment after a confidential informant made a controlled cocaine purchase; four men (including Fisher) and an infant were present.
Cocaine and other drugs/paraphernalia (scales, razor blades, plastic bags), a handgun, counterfeit bills, diapers, and court papers with Fisher’s name were found in the apartment.
Fisher was sitting on a couch near a bag of cocaine; he told officers “y’all can’t do this…this is not right” while officers used a flash-bang and issued threats.
At the station Fisher gave a videotaped statement saying he stayed at the apartment several nights a week, knew drugs were dealt there, and had contacts to obtain narcotics.
Fisher denied dealing, testified he only visited sometimes, and said he did not see the drugs; he was convicted by the bench of possession with intent to deliver cocaine and sentenced to five years.
The Fifth Court of Appeals affirmed, finding multiple Evans factors that they concluded affirmatively linked Fisher to the cocaine; Fisher petitioned the Court of Criminal Appeals for discretionary review raising two principal challenges.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Fisher)	Held
Whether evidence affirmatively linked Fisher to cocaine so as to prove constructive possession	Multiple factors (proximity, drugs in plain view, paraphernalia, his personal property, his protest of entry, his post-arrest admissions about contacts and sleeping there) show dominion and control	Fisher argues his protest was a response to threats/excessive force, diapers and month‑old court papers don’t prove residence, and his statement about knowing drug contacts isn’t an admission he possessed these drugs	Court of Appeals: Held evidence sufficient — a rational trier of fact could find Fisher knowingly exercised control and knew it was contraband
Whether Fisher’s protest of the police entry can be an Evans affirmative link	Treats his protest as asserting authority over the premises, supporting constructive possession	Fisher contends his protest was an objection to officers’ threatened/actual excessive force and does not indicate authority or consciousness of guilt	Court of Appeals: Treated protest as supportive of dominion/control; Fisher seeks review to challenge that expansion
Whether personal property (diapers, court papers) in apartment ties Fisher to possession	State relied on Fisher’s personal papers and items to show connection to apartment	Fisher says diapers belonged to his infant stepson and court papers were from a prior month — insufficient to show residence or possession	Court of Appeals: Counted personal property as a factor; Fisher argues this is legally insufficient
Whether post-arrest statement about knowing drug contacts links him to the specific contraband	State used his admission that he knew suppliers and stayed there several nights to link him to activity	Fisher says this was an attempt to bargain and does not admit possession of the cocaine found; knowledge of other dealers is irrelevant to possession of these specific drugs	Court of Appeals: Treated admission as supporting link; Fisher contends it cannot, standing alone, tie him to the seized cocaine

Key Cases Cited

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) (sets out non‑exclusive list of factors that can affirmatively link a defendant to contraband for constructive possession)
Cude v. State, 716 S.W.2d 46 (Tex. Crim. App. 1986) (holding mere presence in a leased premises and lack of personal effects can show only visiting‑guest status, insufficient for constructive possession)
Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.) (general consciousness‑of‑guilt evidence may be insufficient to prove possession of a particular controlled substance)
Denbow v. State, 837 S.W.2d 235 (Tex. App.—Dallas 1992, pet. ref’d) (a strong suspicion or mere probability of control is insufficient to support a conviction)