Kevin Jenkins v. State

                      NUMBERS 13-00-602-CR & 13-00-605-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

KEVIN JENKINS,                                                                   Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

    On appeal from the 344th District Court of Chambers County, Texas.

                                   O P I N I O N

                     Before Justices Yañez, Rodriguez, and Baird^[1]

                                   Opinion by Justice Baird    

Appellant was charged by indictment with the offense of possession of more than fifty but less than 200 pounds of marihuana in cause no. 10,887, and possession with the intent to deliver 400 grams or more of cocaine in cause no. 10,888.  The cases were consolidated for trial.  A jury convicted appellant of each charged offense, and found appellant used or exhibited a deadly weapon in each case.  The trial court assessed punishment at twenty years confinement in cause no. 10,887, and thirty-five years confinement and a fine of $5,000 in cause no. 10,888.  Appellant raises five points of error.  The first and third points contend the evidence is legally insufficient.  We reverse.

I.  Standard of Appellate Review

In determining whether the evidence is legally sufficient to sustain a conviction, we employ the standard of Jackson v. Virginia and ask Awhether, after viewing the evidence in the light most favorable to the prosecution, 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 (1979). The standard is applicable to both direct and circumstantial evidence cases.  See Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).

In possession of controlled substance cases, two evidentiary requirements must be met:  first, the State must prove that appellant exercised actual care, control and management over the contraband; and second, that he had knowledge that the substance in his possession was contraband.  See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.1995)(citing Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App.1988)). To establish criminal liability as a party, the State must prove that the defendant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 1994).  The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence.  Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982).

Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it.  Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982).  When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Sandoval v. State, 946 S.W.2d 472, 476 (Tex. App.BCorpus Christi 1997, no pet.).  Similarly, when the contraband is not found on the accused's person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband.  Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref'd); Musick v. State, 862 S.W.2d 794, 804 (Tex. App.BEl Paso 1993, pet. ref'd).

The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of review.  Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.BAustin 1994, no pet.).  The Court of Criminal Appeals explained this doctrine in Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995):

[U]nder our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly.  Under our precedents, it does not really matter whether this evidence is direct or circumstantial.  In either case it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous.  This is the whole of the so-called Aaffirmative links@ rule.

Id. at 747.

Certain nonexclusive factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the controlled substance:

1. Whether the contraband was in plain view or recovered from an enclosed place;^[2]

2. The accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found;

3. The accused was found with a large amount of cash;

4. The contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting;

5. The contraband was found in close proximity to the accused;

6. A strong residual odor of the contraband was present;

7. The accused possessed other contraband when arrested;

8. Paraphernalia to use the contraband was in view, or found on the accused;

9. The physical condition of the accused indicated recent consumption of the contraband in question;

10. Conduct by the accused indicated a consciousness of guilt;^[3]

11. The accused attempted to flee;

12. The defendant made furtive gestures;

13. The accused had a special connection to the contraband;

14. The occupants of the premises gave conflicting statements about relevant matters;

15. The accused made incriminating statements connecting himself  to the contraband;

16. The quantity of the contraband; and,

17. The accused was observed in a suspicious area under suspicious circumstances.

Carvajal v. State, 529 S.W.2d 517, 520 (Tex. Crim. App. 1975); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.BHouston [1st Dist.] 1998, pet. ref'd); Mohmed v. State, 977 S.W.2d 624, 627 (Tex. App.BFort Worth 1998, pet. ref'd); Cantu v. State, 944 S.W.2d 669, 670 (Tex. App.BCorpus Christi 1997, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 853 (Tex. App.BTyler 1996, no pet.); Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.BBeaumont 1996, no pet.); Washington v. State, 902 S.W.2d 649, 652 (Tex. App.BHouston [14th Dist] 1995, pet. ref=d); Watson v. State, 861 S.W.2d 410, 414‑15 (Tex. App.BBeaumont 1993, pet. ref'd).

The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.BTexarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd).  While affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice.  Grant v. State, 989 S.W.2d 428, 433 (Tex. App.BHouston [14th Dist.] 1999, no pet.) (citing Dubry v. State, 582 S.W.2d 841, 844 (Tex. Crim. App. [Panel Op.] 1979)). Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis.  Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.BAustin 1991, pet. ref'd).

II.  Factual Summary.

On June 8, 1999, at approximately 8:30 p.m., Texas Department of Public Safety (DPS) Trooper, Derek Prestridge, was patrolling Interstate 10 eastbound in Chambers County with Trooper Cody Muse.^[4]  This particular stretch of the interstate consisted of multiple lanes of traffic separated by a cement wall from the multiple lanes of traffic traveling west. Prestridge observed a 1990 Chevrolet Lumina four door automobile in the center lane cross over the left lane marker. Prestridge activated his emergency lights to stop the vehicle.  At that time, Prestridge could see two individuals in the vehicle.  As the vehicle pulled over, Prestridge saw the front seat passenger, appellant, apparently Amoving around, shuffling inside the car,@ and a third individual, Jerome Degree, who had been laying in the back seat Apopped up.@  Prestridge testified appellant=s movement created the Apossibility of weapons in the vehicle and either attempting to hide a weapon or maybe making access to a weapon for their B themselves during the contact.@

The driver, Earl Bellard, immediately exited the vehicle, which Prestridge found uncommon.^[5]  Prestridge performed the horizontal gaze nystagmus test on Bellard to determine if he was intoxicated.  While Prestridge performed the test, Muse checked on the passengers.  Prestridge asked Bellard if he had a criminal record; the information Bellard provided conflicted with the information Prestridge received from the dispatcher.^[6]  Appellant provided information of his criminal record that also conflicted with Prestridge=s information.^[7]  Prestridge testified that appellant appeared nervous, and while nervousness was normal when being stopped for a traffic violation, appellant appeared more nervous than normal.  Appellant was asked to exit the vehicle and when he complied, he backed toward Prestridge as if to be handcuffed.  Prestridge found this unusual.  Prestridge=s pat-down search of appellant revealed no contraband, paraphernalia or weapons.

Prestridge questioned the three occupants of the vehicle separately about their travels.  Prestridge testified appellant was unsure and evasive.  On the video, Prestridge asked Bellard for permission to search the vehicle.  Bellard stated he was not the owner.  Prestridge then asked Degree, who was the owner, for permission.  Degree consented to the search.  Prestridge did not seek appellant=s permission to search the vehicle.  Upon searching the area underneath the front passenger seat, Prestridge recovered a .357 Smith & Wesson firearm.  The weapon was loaded and positioned with the grip toward the front of the vehicle.  This discovery caused Prestridge to order the occupants of the vehicle to remove their shoes, which reduced the chance of their flight or resisting arrest.^[8]  A second gun was subsequently found in the vehicle.^[9]  Neither weapon was examined for fingerprints. 

Prestridge opened the trunk and recognized the odor of marihuana.  Prestridge testified the odor was not apparent before the trunk was opened.  He discovered seven bundles of marihuana. The vehicle was transported to the highway patrol office where the back seat was removed and Prestridge discovered an envelope, a box of sandwich baggies, rubber gloves, $1,978 in cash, and a Ritz cracker box which contained the alleged cocaine. 

Luggage was found in the back seat and in the trunk. A black duffle bag, identified as belonging to Bellard, was found in the back passenger seat.  That bag contained drug paraphernalia in the form of baggies used for weighing drugs.  A blue bag identified as belonging to appellant was also found in the backseat. That bag contained articles of clothing and no drug paraphernalia.  Prestridge stated that nothing in appellant=s luggage linked him to the contraband. Prestridge thought it odd to carry luggage in the back seat.  In the trunk, Prestridge recovered a neck and back brace; Degree is seen wearing a neck brace on the video, and heard complaining of a back injury.  Articles of Big & Tall clothing were also found in the trunk and Prestridge testified Degree was larger than appellant. Three pair of tennis shoes were found in the trunk: two pair were size 14 and the third pair was size 15. Prestridge testified Degree wore size 14.  A pair of size 11 shoes were found in Bellard=s bag.  Degree was searched and $400 was recovered from his person.  Appellant was also searched but no money was found on his person. 

A DPS chemist testified the marihuana weighed 103.65 pounds.  The cocaine weighed 1,220 grams, and was 36% pure.  Baytown Police Officer Charles Widner testified the Houston area was considered a hub for drug smuggling and the transportation of drugs in the United States and the North American continent.  Widner estimated the marihuana to have a wholesale value of $43,435 and a street value of $150,000.  He stated the cocaine had a street value of $300,000.  Widner stated it was uncommon for a single person to transport this amount of contraband.

III.  Analysis

We will begin our analysis by considering two cases from our sister courts which addressed a similar factual scenario.  In Dixon v. State, 918 S.W.2d 678, 679 (Tex. App.BBeaumont 1996, no pet.), two peace officers stopped a car for speeding; Dixon was a passenger.  The driver told the officers that he and Dixon were going to Louisiana to visit his sick mother.  Id. at 680.  Dixon was extremely nervous, his breathing was rapid, his hands were shaking and he would not make eye contact.  Id. Dixon claimed he and the driver, his cousin, were from Houston and enroute to Baton Rouge, Louisiana to visit the driver's sick sister.  Id. Dixon indicated they were going to be there for three days.  Id. When the second officer questioned Dixon, he would not look at him, could not keep still, and said they were going to visit his sick sister.  Id. Dixon stated he knew the driver's mother and she was doing fine.  Id. The driver gave consent to the search. Dixon, 918 S.W.2d at 680. One officer opened the trunk and found two guitars and a speaker.  Id. He asked what the speaker and guitars were for and was told by one of them that they intended to play music with them in Louisiana.  Id. There was no luggage or clothes in the car.  Id. An officer pried open the speaker and found a plastic garbage bag containing fifteen pounds of marijuana.  Id.  Neither Dixon nor the driver admitted to ownership of the marijuana.  Id.

After listing many of the factors that may be employed to affirmatively  link Dixon to the contraband, the court found Dixon=s extreme nervousness, the conflicting statements as to who they were going to visit, the absence of luggage for a three‑day trip, and the fact that the car was borrowed were links indicating guilt. Dixon, 918 S.W.2d at 681-82. However, the factors indicating Dixon did not have control of the contraband were not only more numerous but more convincing: (1) Dixon did not own the car, nor was he driving it; (2) the officers did not even ask Dixon=s permission to search the car because he was not in control of it; (3) there was no evidence any of the trunk's contents belonged to Dixon and no evidence Dixon had access to the trunk; (4) there was no evidence Dixon=s fingerprints were on the speaker containing the contraband or on anything in the trunk; (5) there was no attempt by Dixon to flee the scene, no incriminating statements, and no furtive gestures; (6) there is no evidence Dixon was under the influence of marijuana when stopped, no odor of marijuana, no drugs in the car, and no paraphernalia for using the contraband.  Id. Because there was no evidence Dixon had actual care, custody, control or management over the contraband, the court found the evidence insufficient to sustain the conviction.  Id. at 682.

In Moreno v. State, 821 S.W.2d 344, 352 (Tex. App.BWaco 1991, pet. ref=d), the defendant argued the evidence was insufficient to affirmatively link him to the 745 grams of cocaine found under the hood of the vehicle.  The defendant was a passenger in the vehicle, and upon his arrest and booking, peace officers recovered eleven grams of cocaine in the defendant=s wallet.  Id.  Nevertheless, the court found the evidence insufficient to affirmatively link the defendant to the cocaine found under the vehicle=s hood because the defendant: (1) was not connected with the ownership or control of the car; (2) made no furtive gestures; (3) did not attempt to escape; (4) he made no incriminating statements; (5) was not under the influence of an illegal drug; and, (6) the odor of an illegal drug was not present in or around the vehicle.  Id.

We will consider the affirmative link factors enumerated above in light of this precedent to determine whether the evidence is sufficient to establish appellant=s possession of the marihuana or the cocaine, either as a principal or a party to the charged offenses.^[10]  Neither the marihuana nor the cocaine was found in plain view.  Instead, both were secreted; the marihuana was in the trunk, and the cocaine underneath the back seat of the vehicle.  Appellant was a passenger in the vehicle and there is no evidence that he exercised any ownership or control over the vehicle. In fact, the evidence is to the contrary, Bellard was the driver and Degree was the owner of the vehicle who permitted Prestridge to conduct the search.  Accordingly, Prestridge did not ask appellant to consent to the search.

The contraband was neither in close proximity to appellant, nor conveniently accessible to him.  Instead, the marihuana was in the locked trunk of a vehicle which was neither owned nor driven by appellant, and the cocaine was hidden underneath a seat occupied by Degree.  Prestridge testified the odor of the marihuana was not detected until he opened the trunk.  There is no evidence of appellant being present when the trunk was opened prior to Prestridge=s search.  Additionally, the cocaine did not exude an odor.  Paraphernalia was discovered in Bellard=s luggage and underneath the back seat.  No contraband or paraphernalia was found on appellant or in his luggage.  In fact, Prestridge admitted that nothing about appellant=s luggage linked him to the contraband. 

Appellant was not intoxicated and his physical condition did not indicate recent consumption of either marihuana or cocaine. While Prestridge testified appellant appeared more nervous than normal, his nervousness was certainly much less than that exhibited in either Dixon or Leyva.  Dixon, 918 S.W.2d at 680; Leyva, 840 S.W.2d at 760. Therefore, we do not find that appellant=s conduct indicates a consciousness of guilt. Appellant did not attempt to flee. The occupants of the vehicle gave conflicting statements as to the length of their trip, but that information was not relevant; all of them admitted they were returning from Houston. Any inconsistences are clearly less than those in Dixon, 918 S.W.2d at 680.  Appellant did not make any affirmative statements connecting himself to the contraband.  The vehicle was traveling on an interstate highway at approximately 8:30 p.m.  This is neither a suspicious location nor can appellant=s presence in a vehicle on a public thoroughfare be considered a suspicious circumstance.

Admittedly, the quantity of both the marihuana and cocaine was large.  Degree, the owner of the vehicle, occupied the seat which concealed the cocaine and almost $2,000 in cash, and had $400 on his person.  However, appellant had no money on his person.  Prestridge testified the amount of contraband was normally transported by more than one individual.  This testimony would tend to link appellant with the contraband if there were only two occupants of the vehicle.  However, the presence of Bellard and Degree, one being the driver and the other being the owner of the vehicle, both of whom had personal property connected either with drug paraphernalia or the marihuana, decrease the probative force of this as an affirmative link for appellant.  Also Prestridge=s testimony that those who transported large amounts of drugs tended to travel with weapons does not link appellant to the contraband because Prestridge conceded that it was possible for a person sitting in the front passenger seat to not know a firearm was underneath, and there were no fingerprints linking appellant to the firearm. 

Additionally, we do not find appellant made a furtive gesture toward the weapon.  The whole of Prestridge=s testimony on this is as follows: Appellant Aappeared to be moving around, shuffling inside the car,@ which created the Apossibility of weapons in the vehicle and either attempting to hide a weapon or maybe making access to a weapon for their B themselves during the contact.@  Mere movement by an occupant in a vehicle being stopped by a law enforcement officer, not coupled with reliable information nor suspicious circumstances, does not give rise to probable cause to search of the vehicle.  Wilson v. State, 511 S.W.2d 531, 535 (Tex. Crim. App. 1974).  As noted above, there was nothing suspicious about these circumstances; Prestridge did not possess reliable information related to either the contraband or the weapon, and there is no showing appellant knew the weapon was present. In support of its furtive gesture argument, the State cites DeLaGarza v. State, 898 S.W.2d 376 (Tex. App.BSan Antonio 1995, no pet.), and Hernandez v. State, 867 S.W.2d 900 (Tex. App.BTexarkana 1993, no pet.).  However, those cases are not persuasive; DeLaGarza does not involve a vehicular stop, and in Hernandez the defendant had been in sole possession of the vehicle for at least twenty-four days.  DeLaGarza, 898 S.W.2d at 379; Hernandez, 867 S.W.2d at 904.

Finally, we come to the three pair of tennis shoes in the trunk.  While there was evidence that two pair of shoes were size 14, which was the size of shoe worn by Degree, there is no proof of appellant=s shoe size.  Without such proof, we will not assume the third pair of shoes belonged to appellant, or much less that appellant placed them there at a time when the marihuana was present.  Therefore, there is nothing to show appellant had a special connection to the contraband.

When these factors are viewed in the light most favorable to the prosecution, we hold the evidence is insufficient to establish appellant possessed the contraband alone.  Moreover, when the evidence is viewed in that same light, we hold the evidence is insufficient to prove appellant had the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense.  The evidence does not link appellant to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it.  Accordingly, we sustain the first and third points of error.^[11]

The judgments of the trial court in cause numbers 10,887 and 10,888 are reversed and a judgment of acquittal entered in each cause.  Tex. R. App. P. 43.2(c); Burks v. United States, 437 U.S. 1, 18 (1978); Greene v. Massey, 437 U.S. 19, 24 (1978).

CHARLES F. BAIRD

Justice

Publish. 

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

28th day of February, 2002.

---

^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] When the narcotics are secreted, the State must address whether the defendant knew of the existence of the secret place and its contents. Vargas v. State, 883 S.W.2d 256, 263 (Tex. App.BCorpus Christi 1994, pet. ref'd).

^[3] Excessive nervous behavior and unsettled demeanor may be examples of consciousness of guilt.  Leyva v. State, 840 S.W.2d 757, 760 (Tex. App.B‑El Paso 1992, pet. ref'd) (after vehicle stopped defendant became Aincreasingly nervous.@).  The courts have recognized, however, that nervousness is a tenuous link to the contraband because most people are somewhat nervous when confronted by a police officer.  Hernandez v. State, 867 S.W.2d 900, 905 (Tex. App.BTexarkana 1993, no pet.) (citing Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984) (AWe believe that in this day and time that when a citizen is suddenly facing an imminent confrontation with police officers for unknown reasons, most citizens with nothing to hide will nevertheless manifest an understandable nervousness in the presence of the officer.@).

^[4] Officer Muse did not testify at appellant=s trial.

^[5] Prestridge video taped the stop of the vehicle and his subsequent interrogation of the driver and passengers.  A redacted version of the video was admitted into evidence without objection.  The video tape was not transcribed because the trial judge found the words spoken on the video were not capable of transcription and stated Alet the video speak for itself.@  The tape was made a part if the appellate record and has been reviewed by the court.

^[6] Prestridge did not elaborate on the extent or degree of the conflict with the information received from Bellard.

^[7] Again, Prestridge did not elaborate on the extent or degree of the conflict with the information received from appellant.

^[8] On the video, Prestridge announces that each occupant is under arrest for unlawfully carrying a weapon.

^[9] This weapon was discovered by Robert Hancock, the wrecker driver who towed the vehicle from the highway patrol station to his wrecking yard for storage.  The trooper who recovered this weapon stated it was found between the driver=s side seat and the center console. 

^[10] The trial court=s charge to the jury authorized conviction under either theory, and the jury returned a general verdict.  Therefore, we must determine if the evidence is sufficient to support a finding of guilt under any of the allegations submitted. If so, the verdict will be upheld. Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992).

^[11] We need not address the remaining three points of error. See Tex. R. App. P. 47.1.