*1 deny mandamus relief. we Accordingly, Tex.R.App.P. 52.8(a).
See BLACKMAN, Appellant,
James
v. Texas, Appellee. STATE
No. 01-08-00138-CR. Texas, Appeals
Court (1st Dist.).
Houston 22, 2009.
Dec.
Discretionary Granted Review
June *3 Eliades, Houston, TX,
Rosa Alexander Appellant. for Miller, Mandy Goldman Assistant Dis- Houston, TX, Attorney, Appellee. trict for JENNINGS, Panel consists of Justices KEYES, and HIGLEY.
OPINION JENNINGS, TERRY Justice. rehear- denyWe the State’s motion for Tex.R.App. ing. See P. 49.3. We withdraw August opinion, began our substitute to fall. As the men waited inside van, Neilon opinion place, its and vacate our noticed that the van’s on, “headlights were and the August judgment.1 windshield wipers going back and forth.” After jury appellant, A found James Black- minutes, forty fifty green Toyota man, guilty of the offense of Camry stopped van, paused, front of the substance, namely a controlled away. Gordon, and then drove still driving with intent to deliver2 and assessed his Toyota followed the into a resi- punishment thirty at confinement dential neighborhood where the error, years. points three and the van parked on the side of the road. contends is legally *4 As Neilon continued his surveillance driv- factually insufficient to his convic- van, ing past the he saw “at the deny- tion and that the trial court erred in back of the van with the hatch open.” ing challenge. his Batson3 Appellant appeared to be “retrieving We reverse and render. something out of the van.” Neilon also saw Gordon and the driver of the Background Factual van, “walking towards the rear of the kind (“PPD”) Department Pasadena Police of side side.” Neilon then lost his line Detective T. Neilon of sight. testified on June 14, 2007, while “conducting surveillance at Detective When Neilon re-established Motel,” a Super 8 he saw three men arrive van, his surveillance of the he saw that the “Chrysler mini-type van with North van had been moved to the other side of plates” Carolina and check into the motel the facing street and was opposite the driver, night. for the later identified minutes, direction. After fifteen to twenty Gordon, as James and the two passengers, Neilon saw the two vehicles drive around later identified as and Mario neighborhood the and then return to their
Ayala-Garcia, spent
night
at the motel. previous
location. After
the vehicles
Neilon, the next morning, saw the three
stopped,
get
Neilon saw a man
out
men load their luggage, check out of the Toyota
carry
“a
type
box of some
with
motel,
away.
and drive
Neilon noticed
both hands” to the van. The man handed
van,
that Gordon
drove
sat in
window,
the box
through
to Gordon
seat,
Ayala-Garcia
front
hand,
shook Gordon’s
and then walked
sat “in the
passenger’s
back
seat of the
Toyota.
back to the
directly
van
[appellant].”
behind
away,
When the vehicles drove
Detective
Detective Neilon continued his surveil-
again
Neilon
followed the van. Noticing
lance of the three men throughout
day.
driving
“very
Gordon’s
had become
Neilon followed the men to a “tire
shop,”
erratic,” Neilon contacted PPD Detective
wash,
store,
clothing
Scott,
car
and then back
nearby
C.
who was
in a marked
wash,
to the car wash. At the car
patrol
Gordon
car. Scott followed the van and
parked the van in one
eventually
of the stalls as rain
stop.
initiated a traffic
Neilon
opinion,
weAs
have issued a new
we dis-
2. See Tex. Health
Safety
&
Code Ann.
481.002(5), 481.102(3)(D), 481.112(a), (f)
§§
miss the State’s motion for en banc reconsid-
(Vernon
2009).
Supp.
eration as moot. See
Fire Ins.
v.Co.
Hartford
300, Ltd.,
771,
Springs
C.
2009,
(Tex.App.-Houston
pet.
Kentucky,
[1st Dist.]
de-
3. See Batson v.
U.S.
nied).
(1986).
S.Ct.
joined Scott $637 station, Petersburg, where he saw that the Saint Florida area.” gas van at a Gordon, appellant, asked van Scott had Williams later learned that step of the van. Ayala-Garcia to outside been rented from Avis Rent-a-Car. van, men out of the Neilon and With the generally, during explained, Williams officers searched the van and police other stop, a traffic he for indicators of looks that contained three kilo- recovered a box activity whether criminal such as detainees grams of cocaine. nervous, “overly sweating, fidgeting are around,” change un- detainees’ stories cross-examination, Detective Neilon
On the detainees use questioning, der what, any- not if conceded that he did see guard officers “to let their props induce had “retrieved” from the thing, appellant down” or to tell officers detainees “[the agreed Neilon that he back of the van. good guy[s].” opined that a are] Williams make contact with [appellant] “did not see Bible, per- an unknown with the name of Toyota” “give driver it, son written in found in the and an Toyota anything.” driver of the Neilon invitation, sun found visor agreed [appel- further that he “did not see *5 van, “Wright’s and Smith’s Annual anything to Mr. Gordon.” Neil- pass lant] Family with “no time or Reunion” date that he found the box con- on also stated He also specific props. location” such the cocaine “behind the driver’s taining explained that narcotics traffickers often a on it” seat on the floorboard” with “lid are use rented vehicles because not top and “a blanket on of the lid.” Neilon “subject by to forfeiture seizure [or] that he never saw admitted State.” He that Interstate 10 indicated “reaching behind him towards the back through anywhere in East Houston is labeled as passenger’s sitting seat” or except passenger’s “pipeline money drugs going the van the “front for both and seat.” east and west coast to coast.”
Detective Scott testified that he saw the cross-examination, On testified Williams change signaling, failing van lanes without that he later learned that the driver of the way, generally driving yield right charged had not been identified or “very in a erratic” and “unsafe” manner. with he agreed a crime. Williams sirens, lights After he turned on his anything never saw “hand highway gas van into a pulled off person Toyota,” anything in the “receive step station. Scott asked the three men to person Toyota,” from the or handle they cooperated. out of the Scott the box. containing confirmed that the box the co- Kelly PPD Officer W.R. testified caine a blanket” in “the was “covered become hub for narcotics “[Houston has] backseat on the floorboard.” distribution” because “it has several corri- cross-examination, On Detective Scott [it],” “major into in- coming dors such as anyone he not agreed that did see you get terstates that [allow] [narcotics] any car make furtive movements. Scott in through port system.” He ex- when he in the back conceded that looked plained kilograms three of cocaine “just seat he saw the blanket there.” He purchased “personal would not be use” object could not see whether there was an Kelly but rather for “distribution.” also
under the blanket. explained that in narcotics in- hotel/motel vestigations police look generally PPD Officer C. Williams testified that officers cars, paying by who for during booking process, appellant, people “out state cash, out a lot of foot traffic ence must be deduced a logical as conse patterns behavioral typical evidence, rooms.” Other quence presented the facts “constantly traffickers include of narcotics and there must be a logical and rational about,” moving “be[ing] cellphones on connection between the facts in evidence other,” “in amongst going each and and the fact to be inferred. United States times,” “going out of the room several Michelena-Orovio, v. 702 F.2d town, parts always to different on (5th Cir.), (5th on reh’g, 719 F.2d aff'd phone, continuing looking around as Cir.1983) (en banc). inference, An there though they might waiting be for some- fore, is a conclusion reached consider thing.” Kelly opined that it would be un- ing other and deducing logical facts con “large common in scale narcotics transac- sequence State, from Hooper them. v. ... drug tions for dealers to include other 16 (Tex.Crim.App.2007). Evi witnesses that are not involved in the dence in a knowing possession of contra deal.” band case must amount to more than mere State, conjecture. Dickey v.
Standard of Review
386, 389 (Tex.Crim.App.1984). Specula
review the legal sufficiency
We
tion,
conjecture,
or
theorizing
is mere
by considering
of the evidence
all of the
guessing
possible
about the
meaning of
evidence in the light most favorable to the
presented.
facts and evidence
Hooper,
any
verdict to determine whether
rational
court
(Tex.Crim.
158,
a “volun-
State,
To of a con substance, vicinity a prove presence trolled the State must controlled (1) care, substance, a place that the accused exercised custo or a where controlled control, dy, management being possessed or over the sub substance is used or (2) others, will a that a pos- support finding stance and knew that the matter not
17 person party is a to an offense. Robinson evidence must demonstrate that the link State, 320, between the (Tex.App. 174 325 accused and the v. S.W.3d contraband ref'd). 2005, “generates a reasonable inference that pet. Houston [1st Dist.] accused knew of the fact, contraband’s exis- presence, knowledge “mere even with tence and exercised control over it.” Id. offense, princi an does not make one a words, In other the State must establish pal party or a to the offense and will not the defendant’s connection with the State, Acy a conviction.” v. 618 narcotics was more than just fortuitous. added).4 at 365 (emphasis S.W.2d Pres State, 402, v. Poindexter 153 S.W.3d 405- ence, facts,” when “combined with other (Tex.Crim.App.2005). may that an suffice show accused was a participant a criminal offense. Thomas The Texas Appeals Court Criminal (Tex.Crim. State, v. explained has purpose that the of the links App.1983). But one of the basic tenets of “protect rule is to bystander the innocent penal person our code is that a commits an from solely conviction based upon his for- only voluntarily engages offense if he proximity tuitous to someone else’s [nar- conduct which proscribed by penal is Id. at 406. The rule cotics].” links “sim- 6.01(a) § code. See Tex. Penal ply restates the common-sense notion that Code Ann. (Vernon 2003). son, person father, means an act or spouse, Conduct as a —such roommate, accompanying omission and its mental may jointly possess friend — 1.07(a)(8) (Vernon property § like Supp. state. Id. a house but not necessarily 2009). law, jointly possess the our contraband person Under is not found added). status, Thus, that house.” (emphasis Id. punished for his but for his con (Tex. State, “[w]hen accused is not in exclusive duct. Beier v. possession of the place where the sub- Crim.App.1985). In determining whether found, stance it cannot be concluded has participated party, accused as a knowledge the accused had before, and control may court look occurring to events over the contraband unless there are addi- during, and after the commission of the independent tional facts and circumstances offense, may rely on the actions of the which link affirmatively the accused to the accused which understanding show an contraband.” Id. design common the prohibited to do act.
Id.
Texas
courts
have
identified
“many
may
non-exhaustive factors” that
Joint Possession and the “Links” Rule
link
demonstrate a
to contraband. Rober
When,
here,
as
the accused is not
son,
ting statements
(8)
flee,
any
com
neighborhood” without
“visible
attempted to
er the accused
Toy
munication between the driver of the
ges-
furtive
whether
the accused made
(5)
van”;
occupants
ota and the
(9)
tures,
there was an odor of
whether
appellant “reached into the rear of the
(10)
narcotics,
whether oth-
contraband
(6)
stored”;
belongings
where their
were
paraphernalia
or narcotic
er contraband
the
a vehicle
“was
(11) whether
the accused
present,
very large
in which a
amount —three kilo
right
possess
or had the
to
the
owned
(7)
found”;
grams
cocaine was
the co
(12)
found,
were
—of
place where the narcotics
“conveniently
ap
caine was
accessible” to
in which the narcotics
place
whether the
(8)
pellant;
very
cocaine had
(13)
enclosed,
whether the
were found was
strong
chemical smell.
In
of its
large
with a
amount of
accused was found
argument
appel
that this evidence links
(14)
cash,
whether the conduct of the
lant
the State
on
relies
guilt.
a consciousness of
accused indicated
(Tex.
State,
v.
Robinson
S.W.3d 320
Evans,
at 162 n. 12. These
202 S.W.3d
2005,
ref'd),
App.-Houston
pet.
[1st Dist.]
ex-
way
factors constitute “a shorthand
(Tex.
State,
and Fields v.
pressing
proven
what must be
to establish
ref'd.).
App.-Tyler
pet.
possessed knowing-
[narcotics]
The State’s reliance on Fields is mis-
Roberson,
ly.”
21
the cocaine found in the box behind the where the package containing three kilo-
driver’s seat of the van.
grams of cocaine
actually
in
concealed
Gordon,
a closed box delivered to
Fifth,
appellant
the State asserts that
amount of cocaine does not indicate that
had, during Detective Neilon’s surveil-
appellant knew of its existence. See Ro-
lance,
van,
“reached into the rear of the
berson, 80 S.W.3d at
(holding
740
that
belongings
where their
were stored.”
defendant was not
grams
linked to 24
of
that,
Neilon
point,
testified
at one
he “ob-
pockets
cocaine found in
of backseat pas-
[appellant]
served
at the back of the van
in
senger
car and on
passen-
floorboard of
with
open.”
the hatch
The State does not
car).
ger side of
This is especially so
explain how this links
appellant
given the fact that the driver of
Toyota
cocaine that was later discovered in a
directly
handed the box
to Gordon. Fur-
closed box on the floorboard in the back-
ther, even if appellant knew the shoe box
seat area of the van.
importantly,
More
contained
no evidence indicates
when
appellant
Neilon saw
the back of
appellant directly
or indirectly exer-
van,
Toyota
the driver of the
had not
cised control of the
any way
box or in
yet delivered the box to Gordon. There is
aided Gordon in obtaining or exercising
what,
no
indicating
anything,
if
Allen,
control over the box. See
249
reaching
for in the rear of
(“[0]ne
S.W.3d
698-99
party
not a
and Neilon testified that the three
joint possession even if she was present
luggage
men had their
with
them the
knowledge
and had
of
an offense
anoth-
van. Although
evidence about
er.... A defendant’s knowledge of the
reaching into the rear of the van
link
may
presence of the contraband is insufficient
luggage,
to his
it does not link
requisite
establish the
mental state
him to the cocaine.
knowledge of his or her possession of the
Sixth, the State
that ap
asserts
drugs.”).
pellant
“was a
in a vehicle in
Seventh, the State asserts that the co-
very large
kilograms
which a
—three
—of
caine was “conveniently
ap-
accessible” to
cocaine was found.” A
amount
large
of
However,
above,
pellant.
as noted
co-
may
contraband
indicate an affirmative
“conveniently
caine was not
accessible” to
link if the “amount of contraband found
appellant because it was not “within the
was large enough to indicate the defendant
vicinity
easily
close
of the accused and
State,
knew of its
Villegas
existence.”
v.
accessible
while
the vehicle so as to
894,
(Tex.App.-Houston
S.W.2d
suggest
knowledge
that the accused had
ref'd) (90
1994, pet.
pounds
[1st Dist.]
the contraband and exercised control over
cocaine
pounds marijuana
and 165
found
Robinson,
(em-
it.” See
at 326
view);
State,
plain
Sosa v.
845 S.W.2d
added).
phasis
Again, the driver of the
(Tex.App.-Houston
482-83
[1st Dist.]
Gordon,
directly
handed
box
ref'd) (600
1993, pet.
kilograms of cocaine
and there is no evidence that appellant
found in truck
driven
defendant who
exercised control over it.
truck);
had sole and exclusive control over
State,
see also Pollan v.
Finally,
State asserts that
the co-
(Tex.Crim.App.1981)
(concluding
very strong
caine had a
chemical odor.
proved
State
more than
pres Although
testify
defendant’s
Officer Williams did
ence when defendant “moved to the rear of
generally
very strong,
cocaine
has a
chemi-
odor, here,
the house”
helped
“large
retrieve
cal
there is no evidence
contraband”).
however,
quantity
Here,
odor
of cocaine was detected
the van.
*12
Evans,
n. 12. PPD
the influence of narcotics. No ille-
its
ing on Evans v.
contends that we have
Nevertheless,
viewing
erred in
we conclude
factors on which the
that the State's
viewing
State relies in
misplaced.
reliance on this evidence
"isolation” and
is
First,
major
light
the fact that Houston is a
nar-
evidence in "a
most favorable to the
major high-
cotics distribution center with
defense.” The State’s reliance on Evans is
ways linking
Evans,
it to the
of the
misplaced.
rest
nation does
In
evi-
circumstantial
appellant
not link
to the cocaine found in
provided
dence
independent
additional
Second, although appellant
the van.
had
necessary
facts and circumstances
to establish
wallet,
might
$637 in his
be
this
con-
care,
control,
custody,
the defendant’s actual
link,
presented
sidered a "weak”
the State
is, (1)
management
or
appellant’s employment
evidence
no
sta-
defendant was alone in the house where he
Evans,
Third,
tus. See
was a in the transaction. See KEYES, dissenting. Justice Beier, Here, 4. the State 687 S.W.2d at KEYES, Justice, proved that rode as a EVELYN V. Texas; in a rented van from Florida to dissenting. stayed night the in a motel and rode to I I would hold "that respectfully dissent. clothing car wash and store with Gordon factually legally the and suf- Ayala-Garcia; at the car wash waited show- ficient to establish affirmative links forty fifty in the van with the to others “care, custody, that ing appellant exercised washed; already minutes after it been management” control or over the cocaine van to a rode with the others the resi Therefore, case. I would issue neighborhood; dential talked on his cell issue rather than appellant’s overrule first phone; walked the towards back reversing rendering judgment acquit-
van the at the same time as Gordon and ting him. Toyota walking by driver of were van; side of the in the van when sat
the driver of the handed Gordon Facts containing Appel box cocaine. shoe To obtain a conviction of a defendant for essentially passive, lant’s not behavior was possession of contraband with intent to presented active. The State no evidence deliver, Chapter 481 of the Texas under appellant voluntarily engaged that in con here, Code, Safety Health as he, demonstrating duct with the intent prove State must that the defendant had promote to or Gordon in the com assist contraband, i.e., “possession” of the exer- possession mission of the offense of control, care, custody, cised “actual or solicit, anything encourage, did management.” This case with the deals direct, attempt aid or to aid Gordon affirmative links standard review of committing Viewing the offense. the evi law establish the required Texas light dence in the most favorable to the care, control, manage- custody, “actual verdict, there is no evidence by profes- ment” of controlled substances party was a to Gordon’s drug opera- engaged large-scale cocaine. sionals sum, presented no evidence in the trial below. the State such testimony tions.1 Because I believe the rooms.” Characteristics of dealers are drug agents they enforcement as to charac- are “constantly moving about” professional drug oper- teristic behavior of and “on cell phones in and amongst each atives and the circumstances under which They other.” are “coming and going from apprehended a defendant such a case is rooms, town, going to different parts of material to logical force of the affir- always on the phone, continuing looking mative links between defendant and around though they might as be waiting substance, the controlled I would state the Here, for something.” appellant and the differently material facts of this case from friends; other two men they did not majority, I would give weight much; separate “whenever were on majority evidence the disregards phone, they were in among each other weight much majority less to evidence the on phone.” Officer Kelly left the motel credits as material analysis. to its when apparent it became that no transac- tion was to take place night, but the
Here, among the officers who testified next day, June he followed the van (“PPD”) was Pasadena Department Police when it left the motel and continued his Kelly. Kelly Officer W.R. Officer testified *15 throughout day. surveillance Appel- years to his 17 a experience as narcotics lant the front passenger. was seat doing investigation officer and undercover work, primarily pricing narcotics. He tes- Detective T. Neilon of PPD testified major tified that Houston is a distribution that he had in been narcotics investigation center for narcotics due to intersec- just years, under two had attended a tions “major you get interstates that can schools, number of weapons narcotics and through system.” it into the port He fur- surveys. and had done numerous On June typical ther testified that a kilo of cocaine 14, 2007, he was at the Super 8 Motel and $100,000 costs on the street in Houston conducted surveillance on a crossover personal and would not be for use and that SUV-type van with North plates. Carolina in three kilos found the van in which He plate cheeked the van’s license and passenger was a front seat awas found it had been Petersburg, rented St. large amount of cocaine. Florida. None occupants was the owner. Detective Neilon testified that he Kelly part
Officer testified that he was morning continued surveillance the next of the team investigated appellant motel, and saw the men come out 14-15, two other men on June together, load the van and check out. While he conducting was surveillance at a car, They got then man in with one 14, 2007, Super 8 Motel on June he saw back seat and as the front men, including appellant, three arrive in a They seat passenger. entered Interstate Chrysler mini-van with North Carolina (1-10) 1-10 West towards downtown Hous- plates p.m. after 9:00 and cheek into the ton, exited around the Yellowstone and Old night. motel for the Their behavior was Spanish Trail exit off of typical Highway persons here to make a narcotics went a tire Specifically, shop. They transaction. milled around Kelly Officer tes- talking phones they that in a on cell while had a tire typical tified narcotics transaction characteristics, wash, repaired. They he looks for certain then drove to a car includ- cars, car, ing people paying by of state where all got ap- “[o]ut three out of the cash, a lot of foot traffic in proached group appeared and out of the of men who 481.112(a), (f) (defining 1. See Tex. Health offense and establish- Safety & Code Ann. 481.002(38) (Vernon 2009). (defining §§ "possession”), ing penalty) Supp. around, appeared give Three kilos of cocaine were found loitering
be spent flip-top wrapped The men then about shoebox with a lid money. them talking the car and on blanket on the floorboard behind the front washing 45 minutes passenger wrapping after which seat. The was “what phones, pulled their cell stall, wrapping it we come into contact with the completely, the van into a unloaded it, staying shipping generally to their from from South Texas and vacuumed close van, they vacuuming up phones After to Houston.” cell were on luggage. gear in the back luggage and drove to End shift and reloaded entered, store, that the Zone and came back to the seat. Detective Nielon testified he appear- van about 25 minutes later without behavior observed was consistent with anything. narcotics transactions. He testified that ing bought to have three kilos of cocaine were found in the wash, to the car The men then returned “very large shoebox and that this was a the van in one of the stalls as rain parked amount of “a money.” cocaine” worth lot of fall, and waited inside the van. began to minutes, Scott, forty fifty they pulled police After Officer C. a PPD officer green Toyota Camry pulled up temporarily assigned out. A to the narcotics nar- directly stopped night patrol in front of the cotics division for the shift traffic, began rolling. assigned duty, The van to patrol and then also testified that Trail, pulled patrol out he was in a Spanish onto Old marked vehicle together through proceeded two vehicles called to aid the surveillance about 4:00 Loop “bumper locking” p.m. July caught up traffic onto on 15. He with the staying length apart. than a car van as it traveling Loop less eastbound on *16 They Loop stopped changing exited the South of 610 onto 610 and it for lanes with- Toyota The then in out stopped signaling failing yield. Yosemite. and for The Nielon, driving very front of the and Detective who was erratic and unsafe. Offi- street, following parallel lights was on a saw the cer Scott instituted signals his Toyota of the walk thought stopped driver back towards the when he it safe and the Appellant freeway van. was at the back of the van van off the at a service station. out, with the hatch open reaching passengers step with both He asked the they arms. Detective then sight cooperated. Nielon lost of The cocaine was in a reinstated, flip-type the van. When contact was the shoebox with a lid a under blan- direction, van in the facing opposite was ket within arm’s reach of the backseat directly passenger. almost across the street from the initial It stop. parked remained there for Williams, Officer a PPD C.D. likewise away. 15-20 minutes. Nielon then moved officer, just starting testified that he was back, pull- When he came the two-year his second tour in the narcotics ing out onto with the van Crestmont di- years department. division after 25 rectly again. behind it Detective Nielon He was the during also on scene the sur- lost them them again but found eastbound ultimately veillance and the during arrest Loop driving erratically get- on responsibility and had the to collect evi- ting freeway. on and off the dence. He testified that items found
After Detective Neilon
van
“Wright’s
called for addi-
included an invitation to
surveillance,
Reunion,”
tional
patrol
Family
marked
unit
and Smith’s Annual
un-
address,
stopped
High-
the van at Allen Genoa and
dated and with no
and a Bible
way
occupants
already
225. The
it
placed
were
out
on the dashboard where
could be
of
through
the van when Detective Neilon arrived.
seen
the window and that both
“care,
drug
seeking
custody, management,
dealers
typical
were
or control”
items
person in
story.
only
The
the van over
cocaine in this case
a cover
under the
money
any significant
at the time of
standard
review as set out
with
Fields and
Robinson,
All
as well as in the Court of
stop
appellant,
who had
Crimi
$600.
State,
Appeals cases,
said
nal
Evans v.
occupants
of the van
(Tex.Crim.App.2006),
fur- S.W.3d 158
Petersburg.
St.
Officer Williams
and Po
from
State,
(Tex.
v.
indexter
vehicle.” 11. The also Super 8 Motel no and that one else had care, surveys the factors used establish Robinson, come with them. who like- Id. control, custody, management in Robin identification, wise carried no stated that ‘logical “the son concludes that force’ they days been in for two had Houston by the created Robinson is Houston, they his cousin to that had driven in the case.” Id. at 12 absent instant he could the cousin. but not name Id. 326-30). Robinson, (citing 174 S.W.3d at marijuana The officer smelled noticed disagree majority’s magazine weapon
I with for a applica- semi-automatic review, its analysis cupholder. tion standard of truck console’s Id. He Fields, of Robinson and and its conclusion asked Robinson where he could find the weapon. these a Robinson finding that cases do not Id. When reached floorboard, I grabbed affirmative links in this case. would hold the officer down legally the evidence both him of the truck. Id. that and him ordered out factually a appellant’s sufficient to at 323-24. He then found semi-automat- establish conflicting and Robinson’s statements. Id.
ic
under a shirt on
floorboard
handgun
addition,
reached.
Id. at 324.
at 327.
In
we considered the
where Robinson had
truck,
he found two
Upon searching
found in the
large amount of contraband
factory
in a
large,
packages
truck,
vacuum-sealed
namely two kilos of cocaine with a
the back wall of
compartment built into
value and found the amount
high street
into,
truck,
finding
which he cut
co-
affirmative link
“strongly indicative
trial,
caine.
At
a DPS officer testified
Id.
it
Id. at 328-29.
between
and [Robinson].”
found,
ki-
of cocaine
two
that the amount
Fields,
Lin-
trooper stopped
In
a DPS
a
los,
personal use and was
large
was too
for
driving
coln
Towncar for
at a
Continental
intent to deliver.
Id.
possessed with the
(1-30).
high
speed
rate of
on Interstate 30
is a ma-
He further testified
Houston
dant’s
Evans,
Appeals
the Court of Criminal
out the standard
Reversing
setting
after
analyz-
the court of
appeals
chastised
review,
Appeals
of Criminal
Court
in
ing each of the facts or links
isolation
that the
court had “de-
appellate
observed
and, “[ajpparently relying on alternative
value of
probative
clined to consider the
for almost
explanations
inferences from or
unobjected-to out-of-court state-
the C.I.’s
evidence, ...
every piece
disregarding]
cocaine,
appellant possessed
ments that
concluding]
that noth-
evidence and
the cocaine in an
sold
and hid
ing
appellant’s presence
proximity
but
hall closet.” Id. The Court of Crim-
open
drugs.”
linked him to the
202 S.W.3d at
inal
also stated that
it “defies
Appeals
164. The Evans court observed that “it is
logic,” when a narcotics officer has found not the number of links between the defen-
ceiling
crack cocaine hidden
of a
but,
drug
dispositive
dant and the
is
house where a confidential informant had
rather,
logical
force of all of the evi-
crack
kept
told him the defendant
his
co- dence,
circumstantial,”
direct and
and it
that the
evidence
caine to conclude
State’s
went on to state that
there are
“[w]here
linked the defendant to the house but did
evidence,
permissible
two
views of the
knew of the secret
not “establish
he
fact finder’s choice between them cannot
ceiling.”
drugs
stash of
hidden in the
Id.
clearly
(quoting
be
erroneous.” Id.
at 410.
Bessemer,
City
Anderson v.
470 U.S.
564, 574,
1504, 1511,
105 S.Ct.
84 L.Ed.2d
Similarly,
majority
in the instant
(1985)). The
court stated:
that,
view,
my
ignores
ease
evidence
highly probative
appellant’s
argues
single
affirmative
The State
most
important
to the three
of cocaine found in
link or connection between
links
kilos
the van
grams
the shoe box on the floor of
behind
and the fourteen
of co-
seat,
that the
including
simple
his
shoe-
caine rocks is the
fact that he
directly
the van in which
sitting
box was transferred into
was
front of them.
reach;
They
men had
were within
appellant and two other
traveled
arm’s
cof-
together
Petersburg,
away.
from St.
Florida to a
fee table
less than a foot
Houston, along
extremely
Motel 8 on 1-10 in
a known
This evidence constitutes two
route,
drug
strong “presence”
“proximity”
and that
had re-
links.
day,
Appellant
merely present
men all
loiter-
in a
mained with the other
was not
van,
ing
talking
drugs
away
in and around the
on cell
house with
cached
some-
where,
phones,
engaging
right
and otherwise
behav-
were
under his nose.
drug operatives,
drugs
plain
ior characteristic of
at one
view—a third
vacuuming,
link. He
alone in
point loading, unloading,
the house—a
van,
fourth link.
reloading
immediately
until contact was made
He
admitted
Toyota.
why
with a
The two vehicles
that he knew
walked
green
police had
“Drugs.”
then
a location where
That is a fifth
together
traveled
door—
the back hatch
link. He
mail at 923 Lombra-
opening
was seen
received
no,
again
raising
after which the van was
thus
a reasonable inference
*20
there, which,
occupants
that he lived
in turn raises
other
van
nu-
identified
actu-
a reasonable inference that he had
merous indicia of
trafficking
narcotics
in
care, custody,
al
and control of items
appellant
behavior of
and the others.
plain
found in
view on the coffee table.
Fields, 932 S.W.2d at
(referencing
Cf.
This is a sixth link. He had
$160
“team work” as characteristic of narcotics
pocket,
appar-
twenties in his
but he was
traffickers). Appellant and his two com-
seventh,
ently unemployed. This is a
panions arrived at the motel “in a rented
weak,
albeit
link. The
argues
State
van with North Carolina license plates.”
total of this
sum
circumstantial evi- Appellant spent
night
of June
dence
sufficient to
rational
day
and the entire next
with his two com-
jury’s
finding, beyond a reasonable
panions in the motel and in and around the
doubt,
exercised actual van, talking
phones.
on cell
They “spent a
care,
control,
custody,
management
of notable amount of time waiting at the car
grams
the fourteen
of cocaine on the
until
Toyota pulled
wash
inup
front of
agree.
coffee table. We
the van.”
The van followed the
majority’s
Id. The
approach to the instant
sedan at a bumper-to-bumper distance for
is,
view,
my
case
exactly like that of the
a long distance into a
neighbor
residential
court of appeals which the Court of Crimi-
stopped,
where
two vehicles
the driver
Appeals specifically
nal
disapproved of in
of the Toyota
delivered
box to the
Evans.
and
was seen Detective Neil-
that,
I
hold
would
under the criteria set on at
reaching
the back hatch
into the van.
Evans, Poindexter, Fields,
out in
and Rob-
Toyota stayed
The van and the
in the same
inson, the evidence in this
both
case was
neighborhood
significant
for a
period of
legally
factually
and
sufficient to establish
time,
together, driving
then left
erratically
appellant’s possession of the cocaine at
getting
on
off
freeway,
in a
Here,
Fields,
issue.
as
there was testi-
pattern Detective Neilon testified was
mony by
expert regarding drug
a narcotics
characteristic
drug
traffickers and Offi-
characteristics,
patterns
trafficker
cer Scott testified was unsafe.
Robin-
Cf.
which I would find relevant to the issue of
son,
(stopping
senger seat in which was seated. (find Robinson, 174 at 326-27 S.W.3d
Cf.
ing link where container which cocaine
was located “was unlocked and unable to a shirt completely
be closed because Fields, opening”);
stuffed in the Alejandro Juanita AGUILAR and (finding drugs at 104 link where S.W.2d Rosales, Appellants, Naomi were found concealed beneath closed hood controlled of care whose hood latch was v. interior). from INC., RESOURCES, 21ST CENTURY Appellant had control over the van and Black, individually and John d/b/a that he its contents based on evidence had Erectors, Blackwater Steel d/b/a Petersburg arrived in the van from St. Crane, Jordan, Blackwater and C.F. occupants, with the two other none of L.P., Appellees. vehicle, whom owned the rented had ac during cess to the van the entire time it No. 08-08-00162-CV. surveyed, loaded and unload and had Texas, Appeals Court of occupants ed the van with the other El Paso. occupied day it the entire of the surveil Robinson, lance and arrest. Cf. March 2010. 327; Fields, at Bible, Additionally, the which contained person, and the name of unknown family
undated invitation to a reunion with address, identifying
no as well as date or ownership van rented with untraceable
suggested to officers familiar with narcot- the other trafficking
ics Robinson, were,
occupants of the van as in
“attempting to conceal their activities and identities, revealing
to avoid their the own-
ership they driving, [vehicle] gone
and the real reason