Dallas Carl Tate v. State , 463 S.W.3d 272 ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00179-CR
DALLAS CARL TATE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2013-0163M-CR
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OPINION
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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-
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.
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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.1 Trooper 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
1
Sergeant Beckham testified that by this time he had already requested
and obtained permission to search the women’s purses and found no
contraband.
3
reached out and touched the compartment, he did not believe Hale, the back-
seat 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.
4
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.
5
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
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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.
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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.
5
Also absent from the record is any evidence that the syringe was not in
the possession of Proctor or Hale when Tate left the vehicle, which would have
supported a logical inference that the syringe was in the 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
8
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.
6
And, 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.”)
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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.7 Therefore, a rational juror could not have determined
7
We reject the dissent’s contention that Tate’s act of having his driver’s
license and proof of insurance out and ready when Officer 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
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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.
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