Brandon Kirk Lair v. State

Opinion issued July 3, 2008

      In The

Court of Appeals

For The

First District of Texas

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  NO. 01-07-00414-CR

__________

BRANDON KIRK LAIR, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1105077

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DISSENTING OPINION  

          The majority erroneously concludes that the evidence presented by the State to the jury below is legally sufficient to support the conviction of appellant, Brandon Kirk Lair, of the offense of possession of a controlled substance, namely methylenedioxy methamphetamine (commonly referred to as “MDMA” or “ecstasy”), weighing between 4 and 400 grams.

          The majority’s decision and the reasoning in its opinion is in contradiction of well-settled law and our sound application of the links rule in Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The majority, albeit unwittingly, significantly erodes the protection that the links rule affords bystanders from conviction based solely upon fortuitous proximity to another’s contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Accordingly, I respectfully dissent.  Factual Background

          Federal Bureau of Investigation Special Agent John Chiue, who was working on an organized crime task force with officers from the Houston Police Department, testified that he had received information that a strip shopping center, which contained a pool hall and bar, was a “hot spot” for criminal activity. On September 21, 2006, at 9:00 p.m., he conducted surveillance at the shopping center, and, as he sat in his unmarked car in the shopping center parking lot, Chiue saw an Asian male, later identified as Son Hoang, park a green Honda in the space next to Chiue’s car.

          Agent Chiue explained that he then saw Hoang exit the Honda and “he had a sandwich, kind of like a brown sack, sandwich sack, and he walked over to a vehicle, which was in the parking lot.” The sack was “wadded up.” Chiue, who had to look behind from where he was positioned, saw Hoang approach two black males, later identified as appellant and Triston Davis, who had exited a red Dodge Magnum, which was parked about six car lengths away from Chiue’s car. Although Chiue’s view was “partially blocked” at this point, Chiue saw all three men enter the Dodge. After “approximately 30 seconds,” Chiue saw Hoang exit the Dodge “from the backseat” and return to his Honda “empty handed.” The men in the Dodge then drove away. A “short time later,” another Asian male came out of the pool hall and entered Hoang’s Honda. Chiue, who was parked right next to them, then saw the second Asian male who had entered Hoang’s Honda counting “paper money.”   

          Given his observations, Agent Chiue suspected that a narcotics transaction may have occurred because Hoang had been carrying the brown sandwich sack “wadded up” and was not carrying the sack as one might usually carry a sandwich. In Chiue’s opinion, this conduct was consistent with a “hand-to-hand drug transaction.” He radioed Houston Police Sergeant Michael Landry, who was working with Chiue, and told him that a narcotics transaction might have occurred.   

          On cross-examination, Agent Chiue agreed that his surveillance was random, he had never heard of appellant, Davis, or Hoang, and he did not see what happened inside the Dodge. He conceded that he did not see anything change hands while the three men were in the Dodge. Chiue did not see appellant “touch” or “look inside” the brown sack, hand over any money, act nervous, drive in a dangerous manner, or use a cellular telephone or beeper. He also did not know where the money that he saw the second Asian male count in Hoang’s Honda actually came from. Specifically, Chiue conceded that the money could have come from the pool hall and that he could not testify that the money came from the Dodge. He also admitted that “anything” could have been delivered in the brown sandwich sack and that the delivery of the sack, by itself, could be consistent with both innocent and criminal activity.

          Sergeant Landry testified that, on the night in question, he was parked one block north of the parking lot when he saw the Dodge, occupied by two black males, pull into the center’s parking lot. He received a radio communication from Agent Chiue about what was happening in the parking lot, and, when the Dodge left the parking lot, Landry and other police officers followed it for ten to fifteen minutes. After the driver of the Dodge committed a traffic violation, officers in a marked patrol car stopped the Dodge.

          When the police officers asked appellant, who was the driver of the Dodge, to get out of the car, appellant “immediately” complied with the officers’ instructions, and they placed appellant in the rear of their patrol car. On the other hand, the officers had to ask Davis, who was the passenger in the Dodge, “several times” to exit the car before he complied. Sergeant Landry noted that Davis was “very nervous,” and, as Davis got out of the Dodge, “his elbow hit the console,” which was between the bucket seats. The console then “clicked as if it had not been shut completely.” Landry then opened the console and found a brown sandwich sack as described by Agent Chiue. Inside of the sack, Landry found three plastic bags containing blue pills, which were later confirmed to be 1000 ecstasy pills, weighing approximately 238 grams.

          Contrary to Agent Chiue’s testimony, Sergeant Landry, on cross-examination, testified that it was his understanding, based on Chiue’s radio communications to him, that Chiue did not see Hoang enter the Dodge. Rather, Chiue saw Hoang hand the brown sandwich sack “through the passenger’s window” of the car in a transaction that lasted between “15 to 20 seconds.”

          Sergeant Landry conceded that he did not know whether appellant or Davis knew Hoang before their transaction, appellant was not driving dangerously, and Landry did not believe that appellant or Davis knew that they were being followed by police officers. He further agreed that when the officer in the patrol car activated his emergency lights, appellant pulled over, followed the officers’ instructions, did not appear to be under the influence of any narcotics, did not attempt to flee, and “promptly” and “courteously” complied with the officers’ instructions to get out of the car. Landry further conceded that, compared to Davis, appellant appeared relaxed. Landry did not see appellant make any furtive movements, put his hands or anything in the console, or touch the brown sandwich sack. Moreover, although Hoang’s fingerprints were found on the plastic bags inside the sack, appellant’s fingerprints were not found on the plastic bags. Landry also agreed that ecstasy does not have a distinctive odor. Although appellant had one cellular telephone, he did not have any weapons, beepers, or a large amount of cash.

          Sergeant Landry also conceded that he had not heard anything to prove that appellant had participated in any negotiations with Hoang or that appellant had even touched or looked inside of the brown sandwich sack that contained the narcotics. When asked if he had any reason to believe that appellant knew what was in the sack, Landry responded that appellant was the owner of the Dodge and that he would think that appellant “would know what was coming into his vehicle.” Landry agreed that the Dodge was registered to another person, but maintained that, because appellant had care and custody of the car, appellant was the owner of the car at that point in time.  

Standard of Review

          We review the legal sufficiency of the evidence by viewing 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The Texas Supreme Court has explained the well-settled law that we must sustain a legal sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Evidence does not exceed a scintilla if it does no more than create a mere surmise or suspicion that a fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.3d at 822. However, if the undisputed facts allow only one logical inference, neither jurors nor the reviewing court may disregard those facts. Id.; see Evans v. State, 202 S.W.3d 158, 162–63 (Tex. Crim. App. 2006).  

          In conducting a legal sufficiency review, an appellate court must be mindful that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing the review, the court may not reevaluate the weight and credibility of the evidence and substitute its judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The court must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). Legal Sufficiency

          In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction because the State presented no evidence that he exercised care, custody, control, or management over the narcotics or that he knew the brown sandwich sack contained narcotics.

          A person commits the offense of possession of a controlled substance in an amount of more than 4 grams but less than 400 grams, if he knowingly or intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.103(a)(1) (Vernon Supp. 2007), 481.116(d) (Vernon 2003).

          “Possession” means “actual care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2007). Moreover, possession is a voluntary act “if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Id. § 6.01(b) (Vernon 2003). Accordingly, in a possession of a controlled substance prosecution, the State must prove that (1) the accused exercised control, management, or care over the substance, and (2) the accused knew that the matter possessed was a controlled substance. Evans, 202 S.W.3d at 161.  

          Here, although appellant was the driver of the Dodge in which the brown sandwich sack containing the narcotics was found, he was not in exclusive possession of the car. Davis was also present in the Dodge as a passenger, also seated next to the console containing the brown sack, and actually contacted the console upon exiting the car. In such circumstances, this Court has explained,

When, as here, the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively 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. . . . An affirmative link [is one that] generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it. . . . Proof of an affirmative link between the accused and the contraband is mainly needed to establish knowledge or intent.

Roberson, 80 S.W.3d at 735 (citations omitted) (emphasis added). In short, “[w]hether this evidence is direct or circumstantial, ‘it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous.’” Poindexter, 153 S.W.3d at 405–06. This “is the whole” of the so-called “links” rule. Id. at 406.

          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. 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, 80 S.W.3d at 735. These factors constitute “a shorthand way of expressing what must be proven to establish that [narcotics] were possessed knowingly.” Id. The number of linking factors present is not as important as the “logical force” they create to prove that an offense was committed. Id. These links include (1) the accused’s presence when a search is conducted, (2) whether the narcotics were in plain view, (3) the accused’s proximity to and the accessibility of the narcotics, (4) whether the accused was under the influence of narcotics when arrested, (5) whether the accused possessed other contraband or narcotics when arrested, (6) whether the accused made incriminating statements when arrested, (7) whether the accused attempted to flee, (8) whether the accused made furtive gestures, (9) whether there was an odor of contraband or narcotics, (10) whether other contraband or narcotic paraphernalia was present, (11) whether the accused owned or had the right to possess the place where the narcotics were found, (12) whether the place in which the narcotics were found was enclosed, (13) whether the accused was found with a large amount of cash, and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12.

          In Roberson, we applied these factors against a defendant who was the driver of a car containing two passengers and several grams of cocaine, and we held that the evidence was legally insufficient to support the defendant’s conviction for possession of cocaine. 80 S.W.3d at 742. We noted that, “[i]n summary, [Roberson] was the driver of a car containing two passengers; 24 grams of cocaine were later discovered in and near the car; the drugs were found near where [Roberson’s] cousin, Lee, had previously been seated; and the jury could have found that [Roberson] displayed a general consciousness of guilt after his arrest when he disassociated himself from [the second passenger].” Id. at 741. We explained that, although the facts that the defendant “was the driver of a car later found to contain cocaine” and his relationship to Lee and attempted disassociation from the second passenger were “suspicious,” such “[p]roof amounting only to strong suspicion or mere probability will not suffice.” Id. at 742. We emphasized,

There is nothing else to link [Roberson] to the cocaine. He was not under the influence of drugs. In fact, no drugs of any kind, drug paraphernalia, or money was found on his person or near the driver’s seat. There was no drug odor in the car. Appellant was cooperative throughout the stop and made no furtive gestures. The cocaine was not found until almost twenty minutes had passed since appellant got out of the car at [the Trooper’s] request, while Lee and [the second passenger] remained inside during much of that time. No statements were made by any of the three connecting [Roberson] to the drugs.

Id. Accordingly, we concluded,

In short, the State has presented a collection of potential linking factors, each of which might raise suspicion but is insufficient on its own to provide the required . . . link between appellant and the cocaine. These factors, even when viewed together in the light most favorable to the verdict, do not create the logical force necessary to allow a rational juror to find, beyond a reasonable doubt, that appellant had knowledge of the presence of cocaine.

Id.

          In the instant case, the State asserts that the narcotics were “(1) conveniently accessible to the appellant, (2) in a vehicle under the care, custody[,] and control of the appellant, (3) found in the console next to appellant, and (4) found secreted in an enclosed space.” Without citation to any supporting authority, the State thus concludes that “the jury could [have] reasonably infer[red] that appellant exercised control, management, or care over the substance and knew the matter possessed was contraband.”

          The majority, likewise emphasizes,

[T]he State presented evidence that the narcotics, located in the center console, were conveniently accessible to appellant and that appellant, as the driver, owned or had the right to possess the car where the narcotics were found. The State also presented evidence that, prior to Davis’s exiting the car, the center console in which the narcotics were located was not completely closed, which, coupled with the evidence of Hoang’s suspicious behavior, gives rise to a reasonable inference that the sack in which the narcotics were located had been visible before appellant and Davis exited the Dodge. The fact that the narcotics were secured in the console, therefore, constitutes evidence of an alternative link—that the narcotics were secreted in an enclosed space.

(Emphasis added). The majority adds,

[T]he State presented evidence that appellant and Davis together greeted Hoang as he approached them in the parking lot, all three men got into the car being driven by appellant, thus concealing their actions from plain view, all three men remained in the car for 30 seconds, and Hoang then exited the car empty-handed and without the sack, causing Chiue to conclude he had observed a hand-to-hand drug transaction.

(Emphasis added). The majority concludes that “these facts, in combination, provide sufficient logical force to establish appellant exercised control over the narcotics and his contact was more than fortuitous.” (Emphasis added). This conclusion, like the State’s conclusion, is based upon assumptions that merely raise suspicion.

          Here, the bottom line is that, as conceded by the State during oral argument, there is absolutely no evidence in the record that appellant ever looked inside of the brown sandwich sack, ever touched the sack, or had anything to do with placing the sack into the car’s console. Agent Chiue simply was not in a position to hear anything or see what happened inside of the Dodge. Thus, Chiue could not testify that Hoang gave the sack to appellant, nor did Chiue hear appellant say anything to prove that appellant knew that the sack contained narcotics.

          Yet, the State and the majority conclude that the facts of this case establish that appellant knowingly exercised control over the narcotics in the brown sandwich sack. This conclusion stands in direct contradiction to Roberson, in which we held that such “[p]roof amounting only to strong suspicion or mere probability will not suffice.” 80 S.W.3d at 742. Even if Agent Chiue may have had reasonable suspicion to temporarily detain appellant, Davis, and Hoang, this does not mean that the State’s evidence is legally sufficient to prove that appellant knowingly exercised control over the narcotics in the sack.

          When objectively considered, the State has presented only two factors that could possibly link appellant to the narcotics: (1) appellant had possession of the car in which the narcotics were found, and (2) appellant, as the driver of the car, was in very close proximity to and had access to the console in which the brown sandwich sack containing the narcotics was found. However, as we stated in Roberson, without exclusive control of the car, the mere fact that “a defendant was driving a vehicle containing narcotics,” by itself, is not legally sufficient to sustain a conviction for possession of the narcotics. Id. at 736. Thus, without any other links to the narcotics, the logical force of this link is undermined.

          In regard to the fact that appellant, as the driver, was close to and had access to the console in which the brown sandwich sack containing the narcotics was found, the logical force of this link is undermined by the fact that the State did not prove when the narcotics were placed in the console. One might suspect that appellant placed the narcotics in the console. However, as Sergeant Landry testified, after appellant “immediately” complied with the instructions of police officers to exit the car, Davis was alone in the car with the narcotics. Here, the following exchange between the State and Landry occurred:

[State]: The vehicle stops and what do you [do] next?

[Landry]: We asked the driver to get out of the vehicle and then we asked the passenger to get out of the vehicle.

[State]: Did they comply?

[Landry]: The passenger—the driver immediately got out of the vehicle and was placed in the rear of the patrol car. The passenger was asked to get out of the car several times before he would comply.

(Emphasis added). On cross-examination, Landry elaborated,

[Defense counsel]:And then when you asked [appellant] to get out of the car . . . , he did that promptly and he did it courteously?

[Landry]:Yes, sir.

[Defense counsel]:And you said he appeared to be relaxed?

[Landry]: Compared to [Davis], yes.

[Defense counsel]:He made no furtive movements that you saw?

[Landry]:That I saw, no, sir.

[Defense counsel]: He never attempted to put his hands or anything in that console, right?

[Landry]:Not that I saw.

[Defense counsel]:You never saw him touching that brown paper bag, correct?

[Landry]:No, sir.

          In stark contrast to appellant, the police officers had to ask a “very nervous” Davis several times to exit the Dodge, and, before he finally did, Davis’s “elbow hit the console,” and it “clicked as if it had not been shut completely.” This is an undisputed fact that the jury was not entitled to ignore. Because Davis was alone in the Dodge after appellant had gotten out of the Dodge and was then placed into the patrol car, it cannot logically be inferred that the brown sandwich sack containing the narcotics was in the console when appellant was in the Dodge. Moreover, the fact that Davis made a furtive gesture, apparently to conceal the sack, by closing the console, does not, as asserted by the majority, support a logical inference that “the sack in which the narcotics were located had been visible before appellant and Davis exited the Dodge.” More importantly, there is still no evidence in the record that appellant knew what was inside the sack. There is also no evidence that would support a logical inference that appellant “secreted” the narcotics “in an enclosed space.” The only logical inference supported by the undisputed evidence is that Davis, not appellant, concealed the brown sandwich sack in the console of the Dodge after appellant had exited the Dodge and was placed in the patrol car.

          Nevertheless, the State contends that appellant’s connection with the narcotics “was more than fortuitous.” In its brief, the State asserts that,

Agent Chiue actually observed the drugs being delivered into the passenger compartment of the vehicle occupied by the appellant along with his friend and shortly thereafter, observed the Asian male involved in that delivery counting a large wad of paper money in his car. The paper bag was secreted in the console located next to the appellant who was the driver. The jury could reasonably infer from these circumstances that the appellant could not have escaped having knowledge of the drug transaction that occurred within the small enclosed confines of the passenger compartment and in his presence, and that he clearly exercised care, custody, and control over the contraband when he either secreted the drugs in the console or allowed the drugs to be secreted.

(Emphasis added). First, Agent Chiue did not testify that he “actually” saw Hoang deliver narcotics into the passenger compartment of the Dodge. If he had, that would establish Davis’s possession, not appellant’s. In fact, Chiue testified that he could not see what had happened inside of the car. He did testify that he saw Hoang, carrying a “wadded up” brown sandwich sack, enter the Dodge with appellant and Davis and then saw Hoang exit the Dodge “empty handed” after approximately 30 seconds.

          Second, Agent Chiue did not “observe” Hoang “counting a large wad of paper money in his car.” On direct examination, Chiue did testify as follows:

[Chiue]:Another Asian male gets in the vehicle, they’re parked right next to me, as I was looking down on them, they were counting money.

[The State]: Could you see denominations of the bills?

[Chiue]:It was paper money. They were counting it just like you count paper money.

[The State]: How big of a wad of money are we talking about?

[Chiue]:I couldn’t tell you; but they were—they were just counting it like money.

(Emphasis added). On cross-examination, Chiue clarified his previous testimony,

[Defense counsel]: And then another Asian male came out of the pool hall?

[Chiue]:Correct.

[Defense counsel]:Got into the Accord?

[Chiue]:Correct.

[Defense counsel]:And at that time you saw some money being counted?

[Chiue]:Correct.

[Defense counsel]:Who was counting the money?

[Chiue]:The second male that came out of the pool hall.

[Defense counsel]:All right. So you don’t know if the money came from Mr. Hoang, the person that approached the red [Dodge], or you don’t know if the money came from the person in the pool hall, right?

[Chiue]:I don’t know.

(Emphasis added). Thus, the State’s argument is based, in part, on false premises.

          Third, even assuming that Agent Chiue actually saw Hoang “counting a large wad of money” in his car after handing off the brown paper sack in the Dodge, this would, at best, support Chiue’s suspicion that Hoang had engaged in a narcotics transaction. Given the presence of Davis in the Dodge, the State’s evidence does not prove that Hoang actually sold the narcotics to appellant. Nor does it prove that appellant exercised “actual care, custody, control, or management” over the narcotics. Nor does it prove that appellant even had any knowledge of what was inside the brown sandwich sack.

          Finally, as conceded by the State during oral argument, Agent Chiue did not see what happened in the Dodge and Chiue did not hear any word spoken between Hoang and appellant and Davis during their 30 seconds together. As further conceded by the State, it presented no evidence that appellant ever touched the brown sandwich sack, looked into the sack, or had anything to do with placing the sack into the car’s console.

          In support of its holding that the evidence in this case is legally sufficient to show that appellant knowingly exercised care, custody, control, and management over the narcotics in the brown sandwich sack, the majority relies, parenthetically, on Evans, 202 S.W.3d at 166; Poindexter, 153 S.W.3d at 405; and Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). These cases are not applicable here.

          The majority first cites Robinson for “affirming [the] possession conviction of [a] front-seat passenger in [a] truck where [the] cocaine was located in [a] factory compartment in [the] back wall of [the] truck, and noting that [the] cocaine was within [the] vicinity and easily accessible to [the] passenger.” See 174 S.W.3d at 326. However, there was far more significant evidence linking Robinson to the contraband. We emphasized,

In summary, [Robinson] was a passenger in a truck found to be transporting two kilos of cocaine worth more than one million dollars. The cocaine was located in an enclosed, unlocked space in the back of a truck, concealed under a shirt. [Robinson] was traveling from Houston, a major cocaine distribution point, and claimed to have been there two days—an amount of time that conflicted with [the driver’s] account— but carried none of the necessities for an overnight stay, such as a toothbrush or fresh clothing. Neither [Robinson] nor [the driver] carried any identification; [the driver] was not a licensed driver, but stated that [Robinson] was in fact a licensed driver and was supposed to be driving. [The driver] gave conflicting accounts as to ownership of the truck, and he and [Robinson] gave conflicting accounts regarding their trip to Houston. Moreover, a magazine for a semi-automatic handgun was found in plain view on the console between [the driver] and [Robinson], and, when [the trooper] asked where the weapon was, [Robinson] reached toward a loaded handgun concealed by a shirt on the floor of the truck. The jury could have found that the handgun was for the protection of the cocaine.

Id. at 329. The links established in Robinson and their logical force taken together serve to show precisely how weak the State’s evidence is in the instant case, not that appellant knowingly “exercised control over the narcotics and his contact was more than fortuitous.”

          The majority next cites Poindexter for the proposition that “[t]he mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband.” See 153 S.W.3d at 412. This is true, but it certainly does not contradict appellant’s point, which is that the State, in such a circumstance, must present sufficient evidence to link such an accused to the contraband. In Poindexter, the State presented evidence that after a confidential informant purchased cocaine from Poindexter at a house, police officers executed a search warrant at the house to seize narcotics. Id. at 404. Although another person had been seen in the house and Poindexter was not present when the officers executed the warrant, the State presented unobjected to hearsay evidence from one of the officers that the confidential informant had told the officers that Poindexter possessed and sold cocaine and where Poindexter hid the cocaine in his house. Id. at 407–11. Moreover, the cocaine was found in plain view and “recovered from a hidden location accessible only to one who exercised control over the house.” Id. at 409. Poindexter resided at the house, the cocaine was accessible to Poindexter, and the officers found not only the cocaine, but manufacturing and packaging materials, including glass tubes or vials used to make crack cocaine, razors, baggies, and a scale. Id. at 411–12. The Texas Court of Criminal Appeals concluded that the relative probative value of all of the evidence, “including the hearsay evidence,” was legally sufficient to show that Poindexter “exercised care, custody, control, and management over the contraband” and “knew” it was contraband. Id. at 412. Here, of course, the State did not present evidence from anyone to establish that appellant had such direct control over the brown sandwich bag or that he even knew what was inside of it.

          Finally, the majority relies on and quotes Evans for the proposition that the circumstantial evidence here, as in Evans, constitutes “amply sufficient evidence connecting appellant to the actual care, custody, or control of narcotics.” See 202 S.W.3d at 166. However, the Texas Court of Criminal Appeals summarized the case against Evans as follows: The State argues that the single most important link or connection between [Evans] and . . . 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. [Evans] 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 Lombrano, thus raising a reasonable inference 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.

Evans, 202 S.W.3d at 163 (emphasis added). Clearly, the strength of the links in Evans are in no way comparable to the purported links in the instant case. Evans does not support the majority’s conclusion that the evidence here is legally sufficient to support appellant’s conviction.

          In fact, each case relied upon by the majority to support its conclusion—Robinson, Poindexter, and Evans—actually undermines its conclusion. None of the strong and significant links present in those cases are present here. Here, in contrast to Robinson, the State did not present evidence of facts inconsistent with any statement of appellant. Appellant and Davis did not give conflicting stories to Sergeant Landry about their travel plans or ownership of the car in question. Nor did appellant have a firearm in the Dodge “for the protection” of narcotics. In contrast to Poindexter, the State, here, did not present evidence from a confidential informant that appellant hid narcotics in a specific location. Finally, in contrast to Evans, the State presented no evidence that narcotics were found in plain view of appellant while he was “sitting directly in front of them.”

          As we noted in Roberson, “possession means more than being where the action is.” 80 S.W.3d at 742. Moreover, “[p]roof amounting only to strong suspicion or mere probability will not suffice.” Id. Here, appellant was the driver of a car found to contain narcotics in the console of the car near the driver’s seat. However, because appellant did not have exclusive control over the car, this fact merely raises suspicion. See id. As in Roberson, there is nothing else to link appellant to the narcotics. The narcotics were not found in plain view where one would know of their presence. Appellant was not under the influence of narcotics. No narcotics of any kind, drug paraphernalia, or money was found on his person. There was no drug odor in the car. Appellant was cooperative throughout the stop and made no furtive gestures. He did not engage in conduct indicating a consciousness of guilt and did not attempt to conceal or destroy evidence. Appellant did not attempt to flee or escape and made no incriminating statements connecting himself to the narcotics. Moreover, appellant was not present in the Dodge when the narcotics were found after Davis had hit the console of the car with his elbow as if to close the console.

          As in Roberson, the State has presented some “potential linking factors” which “might raise suspicion” but do not have the logical force necessary to actually link appellant to the narcotics. See id. Even when viewed together in the light most favorable to the verdict, the factors relied upon by the State “do not create the logical force necessary to allow a rational juror to find, beyond a reasonable doubt,” that appellant exercised actual care, custody, control, or management over the narcotics or even knew that the brown sandwich sack contained narcotics. See id.  

          Accordingly, I would hold that the evidence is legally insufficient to support appellant’s conviction of the offense of possession of a controlled substance. I would sustain appellant’s first issue and reverse the judgment of the trial court and render a judgment of acquittal.

          The majority’s conclusion to the contrary is in direct contradiction of the well-settled law and our holding in Roberson. Unwittingly, the majority’s opinion waters down the links rule to the point that it is nearly meaningless and significantly erodes the protection that the links rule affords bystanders “from conviction based solely upon . . . fortuitous proximity to someone else’s [narcotics].” Poindexter, 153 S.W.3d at 406.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.  

Justice Jennings, dissenting.

Publish. Tex. R. App. P. 47.2(b).