Lead Opinion
OPINION
We deny the State’s motion for rehearing. See Tex.R.App. P. 49.3. We withdraw
A jury found appellant, James Black-man, guilty of the offense of possession of a controlled substance, namely cocaine, with intent to deliver
We reverse and render.
Factual Background
Pasadena Police Department (“PPD”) Detective T. Neilon testified that on June 14, 2007, while “conducting surveillance at a Super 8 Motel,” he saw three men arrive in a “Chrysler mini-type van with North Carolina plates” and check into the motel for the night. The driver, later identified as James Gordon, and the two passengers, later identified as appellant and Mario Ayala-Garcia, spent the night at the motel. Neilon, the next morning, saw the three men load their luggage, check out of the motel, and drive away. Neilon noticed that Gordon drove the van, appellant sat in the front passenger seat, and Ayala-Garcia sat “in the back passenger’s seat of the van directly behind [appellant].”
Detective Neilon continued his surveillance of the three men throughout the day. Neilon followed the men to a “tire shop,” a car wash, a clothing store, and then back to the car wash. At the car wash, Gordon parked the van in one of the stalls as rain began to fall. As the men waited inside the van, Neilon noticed that the van’s “headlights were on, and the windshield wipers were going back and forth.” After forty to fifty minutes, a green Toyota Camry stopped in front of the van, paused, and then drove away. Gordon, still driving the van, followed the Toyota into a residential neighborhood where the Toyota and the van parked on the side of the road. As Neilon continued his surveillance driving past the van, he saw appellant “at the back of the van with the hatch open.” Appellant appeared to be “retrieving something out of the van.” Neilon also saw Gordon and the driver of the Toyota “walking towards the rear of the van, kind of side by side.” Neilon then lost his line of sight.
When Detective Neilon re-established his surveillance of the van, he saw that the van had been moved to the other side of the street and was facing the opposite direction. After fifteen to twenty minutes, Neilon saw the two vehicles drive around the neighborhood and then return to their previous location. After the vehicles stopped, Neilon saw a man get out of the Toyota and carry “a box of some type with both hands” to the van. The man handed the box to Gordon through the window, shook Gordon’s hand, and then walked back to the Toyota.
When the vehicles drove away, Detective Neilon again followed the van. Noticing that Gordon’s driving had become “very erratic,” Neilon contacted PPD Detective C. Scott, who was nearby in a marked patrol car. Scott followed the van and eventually initiated a traffic stop. Neilon
On cross-examination, Detective Neilon conceded that he did not see what, if anything, appellant had “retrieved” from the back of the van. Neilon agreed that he “did not see [appellant] make contact with the driver of the Toyota” or “give the driver of the Toyota anything.” Neilon further agreed that he “did not see [appellant] pass anything to Mr. Gordon.” Neil-on also stated that he found the box containing the cocaine “behind the driver’s seat on the floorboard” with a “lid on it” and “a blanket on top of the lid.” Neilon admitted that he never saw appellant “reaching behind him towards the back passenger’s seat” or sitting anywhere in the van except the “front passenger’s seat.”
Detective Scott testified that he saw the van change lanes without signaling, failing to yield right of way, and generally driving in a “very erratic” and “unsafe” manner. After he turned on his lights and sirens, the van pulled off of the highway into a gas station. Scott asked the three men to step out of the van, and they cooperated. Scott confirmed that the box containing the cocaine was “covered by a blanket” in “the backseat on the floorboard.”
On cross-examination, Detective Scott agreed that he did not see anyone in the car make any furtive movements. Scott conceded that when he looked in the back seat he “just saw the blanket there.” He could not see whether there was an object under the blanket.
PPD Officer C. Williams testified that during the booking process, appellant, who had $637 in his wallet, said he was “[fjrom the Saint Petersburg, Florida area.” Williams later learned that the van had been rented from Avis Rent-a-Car. Williams explained, generally, that during a traffic stop, he looks for indicators of criminal activity such as whether detainees are “overly nervous, sweating, fidgeting around,” the detainees’ stories change under questioning, and the detainees use props to induce officers “to let their guard down” or to tell officers “[the detainees are] good guy[s].” Williams opined that a Bible, with the name of an unknown person written in it, found in the van, and an invitation, found in the sun visor of the van, to “Wright’s and Smith’s Annual Family Reunion” with “no date time or specific location” were such props. He also explained that narcotics traffickers often use rented vehicles because they are not “subject to forfeiture [or] seizure by the State.” He indicated that Interstate 10 East through Houston is labeled as a “pipeline for both money and drugs going east and west coast to coast.”
On cross-examination, Williams testified that he later learned that the driver of the Toyota had not been identified or charged with a crime. Williams agreed that he never saw appellant “hand anything to the person in the Toyota,” “receive anything from the person in the Toyota,” or handle the box.
PPD Officer W.R. Kelly testified that “[Houston has] become a hub for narcotics distribution” because “it has several corridors coming into [it],” such as “major interstates that [allow] you to get [narcotics] in through the port system.” He explained that three kilograms of cocaine would not be purchased for “personal use” but rather for “distribution.” Kelly also explained that in hotel/motel narcotics investigations police officers generally look for “out of state cars, people paying by
Standard of Review
We review the legal sufficiency of the evidence by considering 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 offense beyond a reasonable doubt. Williams v. State,
Our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused. Williams,
Legal Sufficiency
In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction because the State failed to prove that he exercised care, custody, or control over the cocaine found in the shoe box on the floorboard behind the driver’s seat in the van.
Here, the State’s primary theory was that appellant was in joint possession of the cocaine found in the shoe box on the floor board behind the driver’s seat in the van. An individual commits the offense of possession of a controlled substance in an amount more than 400 grams if he knowingly and intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.002(5), 481.102(3)(D), 481.112(a), (f). In order to prove possession with intent to deliver, the State must also prove that the defendant intended to deliver the controlled substance to another. See id. § 481.002(38) (Vernon Supp. 2009), § 481.112(a); Parker v. State,
To prove “possession” of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the substance and (2) knew that the matter possessed was a controlled substance. Evans,
Here, the trial court also instructed the jury that it could find appellant guilty if he (1) acted with the intent to promote or assist in the commission of the offense and (2) he solicited, encouraged, directed, aided, or attempted to aid Gordon or Ayala-Gareia to possess the cocaine with the intent to deliver it. Under the law of parties, a defendant may be convicted of the offense of possession with intent to deliver if he (1) acting with the intent to promote or assist the commission of the offense, (2) solicits, encourages, directs, aids, or attempts to aid another person in committing the offense. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). Knowledge of the presence of cocaine is a required element for conviction as a party to the offense. Acy v. State,
Joint Possession and the “Links” Rule
When, as here, the accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must “link” the accused to the contraband “in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.” Roberson v. State,
The Texas Court of Criminal Appeals has explained that the purpose of the links rule is to “protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s [narcotics].” Id. at 406. The links rule “simply restates the common-sense notion that a person — such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.” Id. (emphasis added). Thus, “[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” Id.
Texas courts have identified “many non-exhaustive factors” that may demonstrate a link to contraband. Roberson,
Here, the State relies specifically upon certain factors to link appellant to the cocaine found in the shoe box on the floorboard behind the driver’s seat in the van. In our analysis, we examine and evaluate the pertinent factors in light of the links doctrine and in accordance with the legal sufficiency standard of Jackson. See Evans,
The State’s reliance on Fields is misplaced. In Fields, the Tyler Court of Appeals held that a jury could have found that the evidence linked the defendant, Fields, to cocaine found under the hood of a rented Lincoln Continental Towncar in which he was the front-seat passenger. Fields,
(1) inasmuch as the Lincoln had been rented by Fields’ [sic] girlfriend, Bostik, Fields had had possession of the vehicle for the preceding five or more days while Fields & Johnson had been in Grand Prairie; (2) the drugs were found concealed beneath the closed hood of the Lincoln, and the hood latch was controlled from the interior of the car; (3) a can of air freshener was located under the seat occupied by Fields, and the air freshener odor matched the scent of the contraband when found; (4) Fields untruthfully denied his prior drug offenses; (5) Fields and Johnson gave conflicting stories as to their purpose for coming to Texas and activities while in Texas; (6) Fields carried an inadequate amount of*19 clothing for a five day trip; (7) Fields exhibited unnatural equanimity and lack of concern throughout the temporary detention and the subsequent investigation.
Id. at 104.
Of the seven links that the Tyler Court of Appeals relied upon, only the first link has any possible similarity to this case, which also involves a rented car. However, the Tyler Court of Appeals did not rely merely on the fact that the defendant was found in a rented car, but rather on the fact that Fields’s girlfriend had rented the car, which indicated that Fields “had possession of the vehicle for the preceding five or more days.” Id. Here, although Officer Williams testified that the van had been rented, there is no evidence that appellant was the individual who had rented the van. The State does not specify how Fields supports its argument that the evidence links appellant to the cocaine in this case, but in reviewing the links relied upon in Fields, we conclude that Fields is inapplicable to the facts in this case. See id.
The State also relies on Robinson to support its contention that there “were sufficient links between appellant and the contraband to conclude that appellant knowingly possessed the cocaine.” In Robinson, the defendant was the front-seat passenger in a four-door pickup truck that had been stopped by a police officer. Robinson,
First, in Robinson, this Court concluded that the defendant was linked to the cocaine because the cocaine was “conveniently accessible” to the defendant. Robinson,
Here, the State demonstrated that the cocaine was within reach of appellant, who was seated in the front passenger seat. However, the State did not show that appellant had control over the van or that his proximity to the cocaine suggested that he had knowledge of the contraband and exercised control over it. Cf. id. at 326-27. At trial, the State argued that “this cocaine came through the window in a shoebox from the driver of the Toyota.” The cocaine was in a closed box and covered by a blanket, and there is no evidence that appellant handled the box or could have
Second, in Robinson, we concluded that the defendant was linked to the cocaine because of his and the driver’s conflicting statements, which implied “that they were attempting to conceal their activities and to avoid revealing their identities, the ownership of the truck they were driving, and the real reason they had gone to Houston.” Id. at 328. The State does not rely on, nor do we find in the record, evidence of any such conflicting statements that would link appellant to the cocaine in this case.
Third, in Robinson we concluded that the defendant was linked to the cocaine because of several “other factors,” i.e., the defendant “had no identification, luggage, toiletry kit, toothbrush, or razor for the purported overnight trip, but he did have a loaded firearm, ostensibly to protect the cocaine.” Id. at 329. The State does not assert, nor do we find in the record, that any of these “other factors” are present in this case.
Having concluded that neither Robinson nor Fields supports the State’s contention that the evidence sufficiently links appellant to the cocaine in the instant case, we now evaluate the eight factors presented by the State and decide whether the “logical force” they create proves that appellant “possessed” the cocaine. See Roberson,
First, the State asserts that appellant, Gordon, and Ayala-Garcia arrived at the motel “in a rented van with North Carolina license plates,” but the State does not explain how this piece of evidence in any way links appellant to the cocaine. There is no evidence that appellant rented or had control of the van. Cf. Robinson,
Second, the State asserts that appellant “spent the night of June 14, 2007 and the entire next day with Gordon and Ayala-Garcia, conversing and otherwise exhibiting a significant familiarity with them.” Although this evidence links appellant to Gordon and Ayala-Garcia, it does not link him to the cocaine.
Third, the State asserts that appellant, Gordon, and Ayala-Garcia “spent a notable amount of time waiting at the car wash until the Toyota pulled up in front of the van.” The driver of the Toyota did deliver a box containing cocaine to Gordon. However, there is no evidence that appellant exercised any control over Gordon or Gordon’s driving. There is also no evidence of what was said between Gordon and the driver of the Toyota or that appellant was privy to their conversation. Although the evidence presented links Gordon to the cocaine, it does not similarly link appellant to the cocaine.
Fourth, the State asserts that the van “followed the Toyota to a residential neighborhood” without any “visible communication between the driver of the Toyota and the occupants of the van.” Here, as with the third factor, because appellant was merely a passenger in the van while Gordon was following the Toyota, this evidence does not link appellant himself to
Fifth, the State asserts that appellant had, during Detective Neilon’s surveillance, “reached into the rear of the van, where their belongings were stored.” Neilon testified that, at one point, he “observed [appellant] at the back of the van with the hatch open.” The State does not explain how this links appellant to the cocaine that was later discovered in a closed box on the floorboard in the backseat area of the van. More importantly, when Neilon saw appellant in the back of the van, the driver of the Toyota had not yet delivered the box to Gordon. There is no evidence indicating what, if anything, appellant was reaching for in the rear of the van, and Neilon testified that the three men had their luggage with them in the van. Although evidence about appellant reaching into the rear of the van may link appellant to his luggage, it does not link him to the cocaine.
Sixth, the State asserts that appellant “was a passenger in a vehicle in which a very large — three kilograms — of cocaine was found.” A large amount of contraband may indicate an affirmative link if the “amount of contraband found was large enough to indicate the defendant knew of its existence.” Villegas v. State,
Seventh, the State asserts that the cocaine was “conveniently accessible” to appellant. However, as noted above, the cocaine was not “conveniently accessible” to appellant because it was not “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.” See Robinson,
Finally, the State asserts that the cocaine had a very strong chemical odor. Although Officer Williams did testify that cocaine generally has a very strong, chemical odor, here, there is no evidence that an odor of cocaine was detected in the van.
The State’s case rests entirely on appellant’s presence in the van.
Nor is there any evidence that appellant in any way aided or assisted Gordon in obtaining the box containing the cocaine or in exercising control over the box. Again, it is well-settled law that mere presence, even with knowledge of an offense, does not make one a principal or a party to the offense. Acy,
Conclusion
Accordingly, we hold that the evidence is legally insufficient to support appellant’s conviction of the offense of possession of a controlled substance.
We sustain appellant’s first point of error. Having held that the evidence is legally insufficient, we need not address appellant’s second and third points of error.
We reverse the judgment of the trial court and render a judgment of acquittal.
Justice KEYES, dissenting.
Notes
. As we have issued a new opinion, we dismiss the State’s motion for en banc reconsideration as moot. See Hartford Fire Ins. Co. v. C. Springs 300, Ltd.,
. See Tex. Health & Safety Code Ann. §§ 481.002(5), 481.102(3)(D), 481.112(a), (f) (Vernon Supp. 2009).
. See Batson v. Kentucky,
. See also Baldwin v. State, No. 01-00-00109-CR,
. In Baldwin, the defendant was the front seat passenger in a car stopped by a sheriff’s deputy for speeding.
. In its motion for rehearing, the State contends that the additional following evidence, not mentioned in its brief or at oral argument, links appellant to the cocaine found on the floorboard behind the driver’s seat of the van: (1) the expert testimony of narcotics officers that Houston is a major narcotics distribution center and Interstate 10 is a pipeline used by narcotics traffickers; (2) appellant was the only occupant in the van with a significant amount of cash on him; (3) expert testimony that a family reunion invitation and a Bible were typical "props” used by narcotics traffickers to create a cover story; (4) appellant was "working” with the co-defendants to complete a narcotics transaction; (5) the cocaine was very valuable and appellant would not have been "entrusted” with it had he been a mere bystander; and (6) appellant was "not surprised” when he was arrested. It must be noted that the State originally relied on items (1), (2), and (5) to establish appellant acted with intent to deliver the cocaine, not to show that he knew the shoe box contained cocaine or that he exercised care, custody, control or management over the cocaine. Moreover, the
Nevertheless, we conclude that the State's reliance on this evidence is misplaced. First, the fact that Houston is a major narcotics distribution center with major highways linking it to the rest of the nation does not link appellant to the cocaine found in the van. Second, although appellant had $637 in his wallet, and this might be considered a "weak” link, the State presented no evidence of appellant’s employment status. See Evans, 202 S.W.3d at 163. Third, there is no evidence that appellant placed the Bible or the "Wright’s and Smith’s Annual Family Reunion” invitation in the van, which was, at all times, driven by Gordon. Nor is there any evidence that appellant was asked to offer, or did offer, any explanation at all for his presence in Texas. Fourth, as discussed in detail above, there is no evidence in the record that appellant "worked” with the co-defendants to complete a narcotics transaction. Fifth, there is no evidence that appellant was ever "entrusted” with the shoe box containing the cocaine. Sixth, the State offers no record reference to support its assertion that appellant was "not surprised when he was arrested.” More importantly, none of the evidence relied on by the State, considered separately or together, is probative as to whether appellant exercised actual care, custody, control, or management over the cocaine or knew that the shoe box found on the floorboard behind the driver's seat in the van contained cocaine. The evidence in the record certainly puts appellant in highly suspicious circumstances; however, the record before us simply contains no evidence of appellant's possession of the cocaine.
. In its motion for rehearing, the State, relying on Evans v. State, contends that we have erred in viewing the factors on which the State relies in "isolation” and viewing the evidence in "a light most favorable to the defense.” The State’s reliance on Evans is misplaced. In Evans, the circumstantial evidence provided the additional independent facts and circumstances necessary to establish the defendant’s actual care, custody, control, or management of the cocaine, that is, (1) the defendant was alone in the house where he lived, sitting within arm’s reach of fourteen grams of cocaine rocks, which were in plain view "right under his nose”; (2) the defendant immediately admitted that he knew the police were there for "drugs”; and, (3) though apparently unemployed, the defendant had $160 in his pocket.
The State, in its motion for rehearing, also contends that we have found the evidence legally insufficient on the basis of only an "alternative hypothesis.” In fact, this Court has thoroughly reviewed all of the evidence expressly relied upon by the State in its briefing and its arguments to this Court to show appellant's possession of the cocaine (not his intent to deliver). This Court has also discussed the legal authority expressly relied upon by the State in its briefing and arguments to this Court. The bottom line is that, when viewed in a light most favorable to the verdict, the factors relied on by the State do not establish a link between appellant and the cocaine that generates a reasonable inference that he exercised care, custody, control, or management over it. See Roberson, 80 S.W.3d at*24 735. In sum, the State presented no such evidence in the trial below.
Dissenting Opinion
dissenting.
I respectfully dissent. I would hold "that the evidence was legally and factually sufficient to establish affirmative links showing that appellant exercised “care, custody, control or management” over the cocaine at issue in this case. Therefore, I would overrule appellant’s first issue rather than reversing and rendering judgment acquitting him.
Facts
To obtain a conviction of a defendant for possession of contraband with intent to deliver, under Chapter 481 of the Texas Health and Safety Code, as here, the State must prove that the defendant had “possession” of the contraband, i.e., exercised “actual care, custody, control, or management.” This case deals with the standard of review of the affirmative links required by Texas law to establish the “actual care, custody, control, or management” of controlled substances by professionals engaged in large-scale drug opera
Here, among the officers who testified was Pasadena Police Department (“PPD”) Officer W.R. Kelly. Officer Kelly testified to his 17 years experience as a narcotics officer doing investigation and undercover work, primarily pricing narcotics. He testified that Houston is a major distribution center for narcotics due to the intersections of “major interstates that you can get it into through the port system.” He further testified that a typical kilo of cocaine costs $100,000 on the street in Houston and would not be for personal use and that the three kilos found in the van in which appellant was a front seat passenger was a large amount of cocaine.
Officer Kelly testified that he was part of the team that investigated appellant and two other men on June 14-15, 2007. While he was conducting surveillance at a Super 8 Motel on June 14, 2007, he saw three men, including appellant, arrive in a Chrysler mini-van with North Carolina plates after 9:00 p.m. and cheek into the motel for the night. Their behavior was typical of persons here to make a narcotics transaction. Specifically, Officer Kelly testified that in a typical narcotics transaction he looks for certain characteristics, including “[o]ut of state cars, people paying by cash, a lot of foot traffic in and out of the rooms.” Characteristics of dealers are that they are “constantly moving about” and “on cell phones in and amongst each other.” They are “coming and going from rooms, going to different parts of town, always on the phone, continuing looking around as though they might be waiting for something.” Here, appellant and the other two men were friends; they did not separate much; “whenever they were on the phone, they were in among each other on the phone.” Officer Kelly left the motel when it became apparent that no transaction was to take place that night, but the next day, June 15, he followed the van when it left the motel and continued his surveillance throughout the day. Appellant was the front seat passenger.
Detective T. Neilon of the PPD testified that he had been in narcotics investigation for just under two years, had attended a number of narcotics and weapons schools, and had done numerous surveys. On June 14, 2007, he was at the Super 8 Motel and conducted surveillance on a crossover SUV-type van with North Carolina plates. He cheeked the van’s license plate and found it had been rented in St. Petersburg, Florida. None of the occupants was the owner. Detective Neilon testified that he continued surveillance the next morning and saw the men come out of the motel, load the van together, and check out. They then got in the car, with one man in the back seat and appellant as the front seat passenger. They entered Interstate 1-10 (1-10) West towards downtown Houston, exited around the Yellowstone and Old Spanish Trail exit off of Highway 288, and went to a tire shop. They milled around talking on cell phones while they had a tire repaired. They then drove to a car wash, where all three got out of the car, approached a group of men who appeared to
The men then returned to the car wash, parked the van in one of the stalls as rain began to fall, and waited inside the van. After forty or fifty minutes, they pulled out. A green Toyota Camry pulled up directly in front of the van, stopped in traffic, and then began rolling. The van pulled out onto Old Spanish Trail, and the two vehicles proceeded together through traffic onto Loop 610, “bumper locking” and staying less than a car length apart. They exited the South Loop of 610 onto Yosemite. The Toyota then stopped in front of the van, and Detective Nielon, who was following on a parallel street, saw the driver of the Toyota walk back towards the van. Appellant was at the back of the van with the hatch open reaching in with both arms. Detective Nielon then lost sight of the van. When contact was reinstated, the van was facing in the opposite direction, almost directly across the street from the initial stop. It remained parked there for 15-20 minutes. Nielon then moved away. When he came back, the Toyota was pulling out onto Crestmont with the van directly behind it again. Detective Nielon lost them but found them again eastbound on Loop 610, driving erratically and getting on and off the freeway.
After Detective Neilon called for additional surveillance, a marked patrol unit stopped the van at Allen Genoa and Highway 225. The occupants were already out of the van when Detective Neilon arrived. Three kilos of cocaine were found in a shoebox with a flip-top lid wrapped in a blanket on the floorboard behind the front passenger seat. The wrapping was “what we come into contact with the wrapping from shipping from generally South Texas up to Houston.” The cell phones were on the gear shift and in the back passenger seat. Detective Nielon testified that the behavior he observed was consistent with narcotics transactions. He testified that three kilos of cocaine were found in the shoebox and that this was a “very large amount of cocaine” worth “a lot of money.”
Officer C. Scott, a PPD police officer temporarily assigned to the narcotics narcotics division for the night shift patrol and also assigned to patrol duty, testified that he was in a marked patrol vehicle that was called to aid in the surveillance about 4:00 p.m. on July 15. He caught up with the van as it was traveling eastbound on Loop 610 and stopped it for changing lanes without signaling and for failing to yield. The driving was very erratic and unsafe. Officer Scott instituted his lights and signals when he thought it safe and stopped the van off the freeway at a service station. He asked the passengers to step out, and they cooperated. The cocaine was in a shoebox with a flip-type lid under a blanket within arm’s reach of the backseat passenger.
Officer C.D. Williams, likewise a PPD officer, testified that he was just starting his second two-year tour in the narcotics division after 25 years in the department. He was also on the scene during the surveillance and ultimately during the arrest and had the responsibility to collect evidence. He testified that items found in the van included an invitation to “Wright’s and Smith’s Annual Family Reunion,” undated and with no address, and a Bible placed on the dashboard where it could be seen through the window and that both
Discussion
The majority acknowledges that the State relies on Robinson v. State,
I disagree with the majority’s application of the standard of review, its analysis of Robinson and Fields, and its conclusion that these cases do not support a finding of affirmative links in this case. I would hold that the evidence was both legally and factually sufficient to establish appellant’s “care, custody, management, or control” over the cocaine in this case under the standard of review as set out in Fields and Robinson, as well as in the Court of Criminal Appeals cases, Evans v. State,
In Robinson, this Court pointed out that the State need not prove the accused’s exclusive possession of contraband to convict him as a principal, but when the accused is not in exclusive possession of the place where the contraband is found the State must establish an “affirmative link” between the accused and the contraband through independent facts that suggest that the accused had knowledge of the contraband and exercised control over it.
In Robinson, a Department of Public Safety (DPS) trooper pulled over the truck in which Robinson, the defendant, was the front seat passenger for following another vehicle too closely while traveling east on 1-10 just outside of Houston. Id. at 323. The driver, who could not produce identification, told the police that he and Robinson had been in Houston for four days to see a friend and had been staying at a Super 8 Motel and that no one else had come with them. Id. Robinson, who likewise carried no identification, stated that they had been in Houston for two days and that they had driven his cousin to Houston, but he could not name the cousin. Id. The officer smelled marijuana and noticed the magazine for a semi-automatic weapon in the truck console’s cupholder. Id. He asked Robinson where he could find the weapon. Id. When Robinson reached down to the floorboard, the officer grabbed him and ordered him out of the truck. Id. at 323-24. He then found a semi-automat
In Robinson, the State argued that several factors affirmatively linked the defendant to the cocaine, specifically: “(1) the cocaine was conveniently accessible to appellant; (2) the cocaine was found in an enclosed space; (3) there was a strong odor of marijuana in the truck; and (4) appellant and the driver of the truck gave conflicting statements to [the police].” Id. at 326. This court agreed. Id. at 326-29. We concluded that the admission of the driver that he had stayed in a Houston motel with Robinson for at least two days after arriving in a borrowed truck that turned out to be registered in Mississippi, the discovery of the cocaine in a factory compartment that could be seen and accessed only by folding down the truck’s back seat, the fact that the driver and Robinson both had keys to the truck, and the driver’s statement that Robinson was supposed to be driving “taken together, offer strong support for the conclusion that [Robinson] had control over the truck and its contents and that the cocaine was within the vicinity of and easily accessible to appellant.” Id. at 327. We also concluded that “the location of the cocaine in an enclosed space helps to establish the requisite affirmative link between appellant and the cocaine,” as did the driver’s and Robinson’s conflicting statements. Id. at 327. In addition, we considered the large amount of contraband found in the truck, namely two kilos of cocaine with a high street value and found the amount “strongly indicative of an affirmative link between it and [Robinson].” Id. at 328-29.
In Fields, a DPS trooper stopped a Lincoln Continental Towncar for driving at a high rate of speed on Interstate 30 (1-30).
The Tyler Court of Appeals held that Fields was linked to the contraband by a number of factors, including the fact that
The court held that testimony by a narcotics expert regarding drug trafficker patterns and characteristics was also relevant to the issue of the defendant’s knowledge that cocaine was present under the hood of the car in which he was a passenger.
In my view, Fields and Robinson are virtually identical to the instant case. The same type of factors relied on to establish affirmative links between the appellant and the controlled substance are present in this case and should be weighted similarly in our review of the evidence. This conclusion is further strengthened by the instructions for applying the standard of review given the intermediate appellate courts by the Court of Criminal Appeals in Poindexter,
In Poindexter, the Court of Criminal Appeals observed that, in deciding whether evidence is sufficient to link a defendant to contraband, as required to support his conviction for possession of a controlled substance, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.
In Poindexter, the Court of Criminal Appeals disagreed with the court of appeals that the evidence was insufficient to establish affirmative links between the defendant, Poindexter and the crack cocaine at issue. Id. at 405. The court of appeals had concluded that because there was some evidence indicating that another person was present in the house when a confidential informant (C.I.) bought cocaine, the State had failed to prove possession of the
Reversing after setting out the standard of review, the Court of Criminal Appeals observed that the appellate court had “declined to consider the probative value of the C.I.’s unobjected-to out-of-court statements that appellant possessed cocaine, sold cocaine, and hid the cocaine in an open hall closet.” Id. The Court of Criminal Appeals also stated that it “defies logic,” when a narcotics officer has found crack cocaine hidden in the ceiling of a house where a confidential informant had told him the defendant kept his crack cocaine to conclude that the State’s evidence linked the defendant to the house but did not “establish that he knew of the secret stash of drugs hidden in the ceiling.” Id. at 410.
Similarly, the majority in the instant ease ignores evidence that, in my view, is highly probative of appellant’s affirmative links to the three kilos of cocaine found in the shoe box on the floor of the van behind his seat, including evidence that the shoebox was transferred into the van in which appellant and two other men had traveled together from St. Petersburg, Florida to a Motel 8 on 1-10 in Houston, along a known drug route, and that appellant had remained with the other men all day, loitering in and around the van, talking on cell phones, and otherwise engaging in behavior characteristic of drug operatives, at one point loading, unloading, vacuuming, and reloading the van, until contact was made with a green Toyota. The two vehicles then traveled together to a location where appellant was seen opening the back hatch of the van, after which the van was again seen by officers conducting surveillance as it left that location and was stopped after driving erratically on and off the freeway, and the shoebox was found under a blanket behind appellant’s seat within arm’s reach.
In Evans, the Court of Criminal Appeals chastised the court of appeals for analyzing each of the facts or links in isolation and, “[ajpparently relying on alternative inferences from or explanations for almost every piece of evidence, ... disregarding] that evidence and concluding] that nothing but appellant’s presence and proximity linked him to the drugs.”
The State argues that the single most important link or connection between appellant and the fourteen grams of cocaine rocks is the simple fact that he was sitting directly in front of them. They were within arm’s reach; the coffee table was less than a foot away. This evidence constitutes two extremely strong “presence” and “proximity” links. Appellant was not merely present in a house with drugs cached away somewhere, they were right under his nose. The drugs were in plain view — a third link. He was alone in the house — a fourth link. He immediately admitted that he knew why the police had walked in the door — “Drugs.” That is a fifth link. He received mail at 923 Lombra-no, thus raising a reasonable inference*31 that he lived there, which, in turn raises a reasonable inference that he had actual care, custody, and control of items found in plain view on the coffee table. This is a sixth link. He had $160 in twenties in his pocket, but he was apparently unemployed. This is a seventh, albeit weak, link. The State argues that the sum total of this circumstantial evidence is sufficient to support a rational jury’s finding, beyond a reasonable doubt, that appellant exercised actual care, custody, control, or management of the fourteen grams of cocaine on the coffee table. We agree.
Id. The majority’s approach to the instant case is, in my view, exactly like that of the court of appeals which the Court of Criminal Appeals specifically disapproved of in Evans.
I would hold that, under the criteria set out in Evans, Poindexter, Fields, and Robinson, the evidence in this case was both legally and factually sufficient to establish appellant’s possession of the cocaine at issue. Here, as in Fields, there was testimony by a narcotics expert regarding drug trafficker patterns and characteristics, which I would find relevant to the issue of appellant’s “care, custody, or control” over the cocaine present in the shoe box placed on the floorboard behind his seat in the car in which he was a passenger and which had not been there when appellant and the other two men had loaded luggage into the van, unloaded and vacuumed it and reloaded it, but was there when the van was stopped by officers after being parked beside the green Toyota it had followed.
There was testimony here, as in Fields and Robinson, that Houston is a major drug distribution center and that 1-10 is a route used by drug traffickers. Cf. Robinson,
As in both Robinson and Fields, a very large amount of cocaine, too great for personal use, namely three kilograms with a street value of approximately $300,000, was found in the van when it was stopped by officers and its occupants ordered out. See Robinson,
The cocaine was also “conveniently accessible” to appellant in that it was “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.” Cf. Robinson,
Appellant had control over the van and its contents based on evidence that he had arrived in the van from St. Petersburg with the two other occupants, none of whom owned the rented vehicle, had access to the van during the entire time it was surveyed, and had loaded and unloaded the van with the other occupants and occupied it the entire day of the surveillance and arrest. Cf. Robinson,
Additionally, the Bible, which contained the name of an unknown person, and the undated invitation to a family reunion with no identifying date or address, as well as the rented van with untraceable ownership suggested to officers familiar with narcotics trafficking that appellant and the other occupants of the van were, as in Robinson, “attempting to conceal their activities and to avoid revealing their identities, the ownership of the [vehicle] they were driving, and the real reason they had gone to Houston.”
For the foregoing reasons, I would hold that the evidence is legally and factually sufficient to establish appellant’s “care, custody, management, or control” over the three kilos of cocaine found behind his seat in the van in which he was traveling. I would, therefore, overrule appellant’s first issue and address his Batson issue.
. See Tex. Health & Safety Code Ann. §§ 481.002(38) (defining "possession”), 481.112(a), (f) (defining offense and establishing penalty) (Vernon Supp. 2009).