Peter Ezebunwa v. State

ACCEPTED
03-14-00682-CR
5949405
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/6/2015 4:38:32 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00682-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT 7/6/2015 4:38:32 PM
JEFFREY D. KYLE
Clerk
Peter Ezebunwa
vs.
State of Texas
APPELLANT’S BRIEF
On appeal from Cause Number D-1-DC-10-206948
In the 427th District Court
Travis County, Texas
Honorable Jim Coronado, Presiding
Amber Vazquez Bode
Attorney at Law
State Bar No. 24039225 ORAL ARGUMENT
1004 West Ave. RESPECTFULLY REQUESTED
Austin, Texas 78701
(512) 220-8507 (office)
(512) 917-3676 (cell)
(512) 480-0760 (fax)
IDENTITIES OF PARTIES COUNSEL
Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of all parties to this action and counsel are as
follows:
Parties: Mr. Peter Ezebunwa, Appellant
State of Texas, Appellee
Attorney for the Appellant: Amber Vazquez Bode
1004 West Ave.
Austin, Texas 78756
Attorneys for the State: Appellate Division
Rosemary Lehmberg
Travis County District Attorney’s Office
509 West 11th Street
Austin, Texas 78701
PETER EZEBUNWA
No. 03-14-00682-CR ii Appellant’s Brief
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ......... ii
TABLE OF CONTENTS........................................... iii
INDEX OF AUTHORITIES...................................... iv
STATEMENT OF THE CASE ...................................1
ISSUES PRESENTED ..................................... ……..3
SUMMARY OF FACTS .............................................4
SUMMARY OF THE ARGUMENT .........................10
POINT OF ERROR: THE EVIDENCE IS INSUFFICENT TO SUPPORT
THE TRIAL COURT’S FINDING THAT APPELLANT HAD VIOLATED
THE TERM ON HIS COMMUNITY SUPERVISION, SPECIFCALLY,
THAT EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
“CARE, CUSTODY OR CONTROL” OF COCAINE…10
PRAYER FOR RELIEF............................................18
CERTIFICATE OF SERVICE .................................20
CERTIFICATE OF COMPLIANCE .........................21
PETER EZEBUNWA iii Appellant’s Brief
No. 03-14-00682-CR
INDEX OF AUTHORITIES
Armstrong v. State, 82 S.W.3d 444 (Tex. App.-Austin 2002)…………….15
Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995) (en banc)……… 11
Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) ....13
Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989) …………..……12
Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) (en banc)...........11
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984)………............10
Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) ………….………10
Deshong v. State, 625 S.W.2d 327 (Tex. Crim. App. [Panel Op.] 1981) ..12
Dickey v. State, 693 S.W.2d 386 (Tex. Crim. App. 1984) ……...........…..12
Dubry v. State, 582 S.W.2d 841 (Tex. Crim. App. 1979)… ……………..13
Duff v. State, 546 S.W.2d 283 (Tex. Cr. App. 1977).………………...……13
Easley v. State, 564 S.W.2d 742 (Tex. Cr. App. 1978)…….…………..…13
Estrada v. State, 643 S.W.2d 753 (Tex.App.-San Antonio 1982, no pet.)...16
Garrett v. State, 619 S.W.2d 172 (Tex.Crim.App.1981).…….…………..11
Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978).. ….13
Hackleman v. State, 919 S.W.2d 440 (Tex.App.-Austin 1996, pet. ref'd,
untimely filed)……………………………………………………………...15
Howard v. State, 972 S.W.2d 121 (Tex.App.-Austin 1998, no pet.)…...….16
Hyett v. State, 58 S.W.3d 826 (Tex.App.-Houston [14th Dist.] 2001, no
pet.)…………………………………………………………………………16
Kulhanek v. State, 587 S.W.2d 424 (Tex. Crim. App. 1979)….………….11
Martinets v. State, 884S. W. 2d 185 (Tex. App.-Austin 1994, no pet.) ...…11
Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App. 1985)……...…..……..12
Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999) (en banc)……...10
Ortega v. State, 860 S.W.2d 561 (Tex. App.-Austin 1993, no pet.)……...11
PETER EZEBUNWA iv Appellant’s Brief
No. 03-14-00682-CR
Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App. 1979)..………………...…….14
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)………………...10
Sinor v. State, 612 S.W.2d 591 (Tex. Crim. App. 1981)…………………..13
Solis v. State, 589 S.W.2d 444 (Tex. Crim. App. 1979)……………….......10
Stogsdill v. State, 552 S.W.2d 481 (Tex. Cr. App. 1977)………………….13
Villarreal v. State, 865 S.W.2d 501(Tex.App.-Corpus Christi 1993, pet.
ref'd)………………………………………………………………………..16
Willis v. State, 2 S.W.3d 397 (Tex. App.-Austin 1999, no pet.)………...…10
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2011)…10
PETER EZEBUNWA v Appellant’s Brief
No. 03-14-00682-CR
THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, PETER EZEBUNWA, Appellant in this cause, by
and through his attorney of record, Amber Vazquez Bode, and pursuant to
the provisions of Tex. R. App. Pro. 38, et seq., files this brief on appeal.
STATEMENT OF THE CASE
Appellant entered into a plea agreement for four year deferred
adjudication community supervision (“probation”) on November 1, 2011on
a third degree felony charge of Possession of a Controlled Substance-
Cocaine. (CR Vol. 1, pgs 46-55). On April 10, 2014, Appellant was
arrested and charged with a subsequent Possession of a Controlled
Substance- Cocaine. (CR Vol. 1, pgs 158-159). A Motion to Proceed with
Adjudication of Guilt was filed by the Travis County District Attorney’s
Office on April 15, 2014. (CR Vol. 1, pgs 158-159). On October 8, 2014,
Appellant plead “not true” to the allegations and a hearing on the merits was
heard by the trial court. (RR Vol. 1, pg 1-6). The trial court found the
allegation “true” by a preponderance of the evidence that Appellant
committed a subsequent offense by having “care, custody or control” of
cocaine. (RR Vol. 1, pg 74). The trial court revoked Appellant’s deferred
adjudication probation and sentenced him to five years in the Texas
Department of Criminal Justice institutional division. (RR Vol. 1, pg 75).
PETER EZEBUNWA 1 Appellant’s Brief
No. 03-14-00682-CR
The subsequent Possession of a Controlled Substance- Cocaine case (D1DC-
14-202070), the substance of which was the sole reason given for the
revocation, was dismissed on October 20, 2014. The trial court certified
appellant’s right to appeal, and appellant consequently perfected appeal.
(CR 180). Tex.R.App.Proc. 26.3.
PETER EZEBUNWA 2 Appellant’s Brief
No. 03-14-00682-CR
ISSUE PRESENTED
THE EVIDENCE IS INSUFFICENT TO SUPPORT THE TRIAL
COURT’S FINDING THAT APPELLANT HAD VIOLATED THE TERM
ON HIS COMMUNITY SUPERVISION, SPECIFCALLY, THAT
EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
“CARE, CUSTODY OR CONTROL” OF COCAINE.
PETER EZEBUNWA 3 Appellant’s Brief
No. 03-14-00682-CR
SUMMARY OF FACTS
On October 4, 2011 Appellant entered into a plea deal with the Travis
County District Attorney’s Office on a third degree felony Possession of a
Controlled Substance in the 427th District Court in Travis County, Texas.
(CR Vol. 1, pgs 39-43). Mr. Ezebunwa was placed on a four year deferred
adjudication probation. (CR Vol. 1, pgs 44-55). As conditions of probation
he had to pay various fees, report to probation, and attend drug treatment.
(CR Vol. 1 pgs 47-49). On February 2, 2012, after hearing a Motion to
Proceed with Adjudication of Guilt that was based on the Appellant testing
positive for marijuana, the trial court added a condition that Appellant
complete the SMART residential treatment program and aftercare. (CR Vol.
1, pg 64). On July 10, 2012, after a Motion to Proceed with Adjudication of
Guilt was filed based on Appellant’s unsuccessful discharge from SMART,
the trial court amended the conditions of his probation and added the six to
nine month SAFPF program. (CR Vol. 1, pg 66-68). Appellant successfully
completed the SAFPF program, but was not successful in the aftercare
requirement at the Austin Transitional Center, so on April 1, 2013, another
Motion to Proceed with Adjudication of Guilt was filed by the Travis
County District Attorney. (CR Vol. 1, pg 75). The trial court continued
Appellant on May 30, 2013. (CR Vol. 1, pg 150).
PETER EZEBUNWA 4 Appellant’s Brief
No. 03-14-00682-CR
On April 10, 2014, Appellant was charged with a subsequent
Possession of a Controlled Substance-Cocaine. (CR Vol. 1, pg 159). A
Motion to Proceed with Adjudication of Guilt was filed by the Travis
County District Attorney on April 15, alleging a positive urine specimen,
delinquency on various fees and that Appellant “[C]omitted a subsequent
criminal offense of Possession of a Controlled Substance in that on or about
the 10th day of April 2014, in the County of Travis, State of Texas, Peter
Ezebunwa did then and there knowingly and intentionally possess a
controlled substance, to wit: Cocaine in an amount by aggregate weight,
including any adulterants and dilutants, of 4 grams or more but less than 200
grams.” (CR Vol. 1, pg 159).
On October 8, 2014, Appellant plead “not true” to the allegations
contained in the Motion to Proceed with the Adjudication of Guilt. (RR Vol.
1, pg 6). A hearing was held and the State called Ms. Leslie Barrett as their
first witness, Appellant’s probation officer. (RR Vol. 1, pg 7). During Ms.
Barrett’s testimony, it was established that Appellant had completed SAFPF
and aftercare successfully. (RR Vol. 1, pg 19). Furthermore, Ms. Barrett
testified that she could not speak to the urine sample’s analysis and the State
agreed to “skip over it,” effectively abandoning it as an allegation. (RR Vol.
1, pg 13). Ms. Barrett also testified that she had been working with
PETER EZEBUNWA 5 Appellant’s Brief
No. 03-14-00682-CR
Appellant on his probation fees due to the fact that he had been attending in-
patient treatment on and off for over twelve months and was unable to seek
employment while in treatment. (RR Vol. 1, pgs 17-21). Ms. Barrett also
stated that she was “working with him” on his delinquent supervision fees
during his last visit with her and had waived $480.00 in fees that were
alleged in the State’s Motion to Proceed with Adjudication of Guilt. (RR
Vol. 1, pg 21).
Joshua Euhus, an Austin Police Officer who arrested Appellant on the
subsequent charge, was called by the State next. (RR Vol. 1, pg 23).
Officer Euhus testified that he responded to a call from a woman about
people in her yard, met with the complainant, who claimed that there were
three to four people she thought might be selling drugs in her backyard. (RR
Vol. 1, pg 25). Officer Euhus testified that he saw a group of people near
the ally, and specifically a black man in a green jacket standing near the
fence. (RR Vol. 1, pg 27). He went on to say the man matched the
description that had been provided to him and that the man was “milling
around,” and that at least three other people were standing close to him,
approximately less than ten feet away from where he was standing. (RR
Vol. 1, pgs 27-28). Officer Euhus said that the black male was “shifting his
weight” while standing and that he watched him for a couple of minutes.
PETER EZEBUNWA 6 Appellant’s Brief
No. 03-14-00682-CR
(RR Vol. 1, pg 28). He stated that the black man in the green jacket was
identified as Appellant, and that he decided to detain all four people. (RR
Vol. 1, pg 29).
Officer Euhus testified that based on the location being an extremely
high drug trafficking area and the statement of the complainant, he detained
them based on a reasonable suspicion that illegal drug trafficking was taking
place. (RR Vol. 1, pg 30). He went on to say that he walked over near
where Appellant had first been standing and saw a pile of rocks stacked up.
(RR Vol. 1, pg 31). He kicked the rock pile down and discovered a bag with
small white rocks that in his training and experience he recognized as crack
cocaine. (RR Vol. 1, pg 31). Officer Euhus spoke to Appellant and
Appellant explained that he was coming from a girlfriend’s house (RR Vol.
1, pg 44-45).
Appellant was subsequently searched and found to have a pay check
stub and $740.00 in his pockets. (RR Vol. 1, pg 35). Testimony went on to
say that another person in the group became belligerent and ended up getting
arrested. (RR Vol. 1, pg 36). Officer Euhus went on to explain that he was
familiar with that specific area and that drug dealers frequently hide drugs
nearby instead of carrying with them to deal on the street. (RR Vol. 1, pg
37). He went on to say that if a suspect was arrested near that intersection
PETER EZEBUNWA 7 Appellant’s Brief
No. 03-14-00682-CR
and their drugs were not on them that the drugs would most likely remain
wherever they had been hidden. (RR Vol. 1, pg 37).
The officer explained that his theory of Appellant being in
“possession” of the drugs was based on the fact that the rock pile was less
than five feet away from Appellant and he considered it a “lunge able
distance.” (RR Vol. 1, pg 38). He clarified on cross-examination that he
never saw Appellant touch the drugs in question, nor did he see him touch
the rock pile. (RR Vol. 1, pg 38). He stated the only thing he saw Appellant
touch was a nearby chair, and that he watched him stand there for
approximately one minute. (RR Vol. 1, pgs 38-39). Furthermore, Officer
Euhus testified that he never saw Appellant sell drugs in that area, and that
he did not check the criminal history or credibility of the complaining
witnesses that they spoke to in the first place. (RR Vol. 1, pg 44).
Officer Bolin testified next for the State, and he testified that
Appellant did not do anything in his observation that heightened his
suspicions. (RR Vol. 1, pg 50). Officer Bolin testified that it was a high
drug trafficking area and that a complaining witness had claimed she had
“observed people dealing drugs.” (RR Vol. 1, pg 51). He stated it was late
in the evening and dark outside. (RR Vol. 1, pg 52). He went on to say that
after they discovered the drugs under the pile of rocks in the alley, him and
PETER EZEBUNWA 8 Appellant’s Brief
No. 03-14-00682-CR
Officer Euhus, “[h]ad a little powwow about it and kind of decided what we
were going to do. We determined at that point in time we did have probable
cause to believe that he [Appellant] was the only one in care, custody, and
control of the crack cocaine, so we decided he was under arrest.” (RR Vol.
1, pg 53).
Officer Bolin went on to clarify that he never actually saw Appellant
sell any drugs and that no officer found any drugs on his person. (RR Vol.
1, pgs 54-55). He also never saw in touching the rocks or digging in the
rock pile in the alley. (RR Vol. 1, pg 55-56).
The final witness was a chemist that testified the substance recovered
from the bag under the rock pile was in fact cocaine. (RR Vol. 1, pgs 60-
69).
PETER EZEBUNWA 9 Appellant’s Brief
No. 03-14-00682-CR
SUMMARY OF ARGUMENT
POINT OF ERROR: THE EVIDENCE IS INSUFFICENT TO SUPPORT
THE TRIAL COURT’S FINDING THAT APPELLANT HAD VIOLATED
THE TERM ON HIS COMMUNITY SUPERVISION, SPECIFCALLY,
THAT EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
“CARE, CUSTODY OR CONTROL” OF COCAINE.
Standard of Review
The decision to proceed to adjudication of guilt and to revoke
deferred-adjudication community supervision is reviewable in the same
manner as a revocation of ordinary community supervision. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2011). An order
revoking community supervision under an abuse of discretion
standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In
a revocation hearing, the State must prove by a preponderance of
the evidence that a defendant violated the terms of her probation. Moreno v.
State, 22 S.W.3d 482, 488 (Tex.Crim.App. 1999) (en banc); Cobb v.
State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993) (en banc); Willis v.
State, 2 S.W.3d 397, 399 (Tex.App.-Austin 1999, no pet.). The State's
burden of proof is satisfied if the greater weight of credible evidence creates
a reasonable belief that the defendant violated a condition of
her probation as alleged by the State. Solis v. State, 589 S.W.2d 444, 447
PETER EZEBUNWA 10 Appellant’s Brief
No. 03-14-00682-CR
(Tex.Crim.App.1979); Kulhanek v. State,587 S.W.2d 424, 426
(Tex.Crim.App.1979); Ortega v. State, 860 S.W.2d 561, 564 (Tex.App.-
Austin 1993, no pet.). A trial court's decision to revoke probation is
reviewed for an abuse of discretion. Cardona v. State, 665 S.W.2d 492, 493
(Tex.Crim.App.1984) (en banc); Willis, 2 S.W.3d at 398-99; Ortega, 860
S.W.2d at 564.
A trial court abuses its discretion if the decision is so clearly wrong as
to lie outside the zone within which reasonable persons might
disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992) (en
banc); Willis, 2 S.W.3d at 399. We view the evidence presented in a
revocation proceeding in the light most favorable to the trial court's
ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981); Willis,
2 S.W.3d at 399; Ortega, 860 S.W.2d at 564. As the trier of fact, it is left to
the trial court to judge the credibility of witnesses and the weight to be given
their testimony. Garrett, 619 S.W.2d at 174; Ortega, 860 S.W.2d at 564.
To prove drug possession, the State must show (1) a defendant
exercised care, custody, control, or management over the drugs, and (2) that
she knew she possessed a controlled substance. Brown v. State, 911 S.W.2d
744, 747 (Tex.Crim.App.1995) (en banc); Martinets v. State, 884 S.W.2d
PETER EZEBUNWA 11 Appellant’s Brief
No. 03-14-00682-CR
185, 187 (Tex.App.-Austin 1994, no pet.) When considering a complaint
that the evidence is insufficient, the court must determine whether, viewing
the evidence in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.. See Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim.
App. 1989).
A defendant must exercise care, custody, control, and management
over illicit drugs, knowing them to be drugs, before he is
guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389
(Tex.Crim.App.1984). If the defendant is not in sole possession of the
premises where drugs are found, the state must prove an affirmative link
between the contraband and the defendant to establish his possession.
Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. [Panel Op.] 1981).
An affirmative link is established by facts and circumstances from which
one may reasonably infer that the defendant knew the contraband existed
and that he exercised care, custody, control, and management over it.
Dickey, 693 S.W.2d at 389. However, mere presence alone is insufficient to
affirmatively link a defendant to narcotics. Meeks v. State, 692 S.W.2d 504,
509 (Tex. Crim. App. 1985).
PETER EZEBUNWA 12 Appellant’s Brief
No. 03-14-00682-CR
It is settled that where this Court finds the evidence to be
insufficient to sustain a conviction, the constitutional guarantee against
double jeopardy precludes further prosecution of the cause. Burks v. United
States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Greene v.
Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978).
While the evidence may strongly suggest that the appellant is guilty
of the offense charged, a conviction based on circumstantial evidence cannot
be sustained if the circumstances do not exclude every other reasonable
hypothesis except that of the guilt of the accused. Proof that amounts only
to a strong suspicion or mere probability is insufficient. Dubry v. State,
supra; Sewell v. State, supra; Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.
1978); Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App. 1977); Duff v.
State, 546 S.W.2d 283 (Tex.Cr.App. 1977). Texas courts have found that
the evidence creates no more than a suspicion of the appellant's guilt of the
offense charged, and is insufficient to sustain the conviction. See Dubry v.
State, supra; Sewell v. State, supra. Sinor v. State, 612 S.W.2d 591, 594
(Tex. Crim. App. 1981).
PETER EZEBUNWA 13 Appellant’s Brief
No. 03-14-00682-CR
A conviction based on circumstantial evidence cannot be sustained if
the circumstances do not exclude every other reasonable hypothesis except
that of the guilt of the accused, and proof amounting to only a strong
suspicion or mere probability is insufficient. Sewell v. State, supra; Easley v.
State, 564 S.W.2d 742 (Tex.Cr.App.1978); Stogsdill v. State, 552 S.W.2d
481 (Tex.Cr.App.1977). Similar to the facts in Appellant’s case, Dubry v.
State involved a scenario in which the Defendant was in a pick up a mile
from an airport in which marijuana had just been brought in on two separate
flights and hidden in bags close to the runway. Dubry v. State, 582 S.W.2d
841, 842 (Tex. Crim. App. 1979). Three people ran and two had been
caught and ground to air radios and red flashers were found near them. Id.
Dubry was found a mile away in a truck and possessed ground to air radio
and red flashers identical to the ones found near the two other people. Id.
Police found marijuana in sweepings from the pick up bed, but no other
connection other than proximity and suspicious circumstances. Id. The
Court held that the evidence creates only a strong suspicion of the appellants'
guilt of the offense charged, and is insufficient to sustain the convictions.
See Sewell v. State, supra; Reyes v. State, 575 S.W.2d 38(Tex. Cr. App.
1979); Wilkes v. State, supra.
PETER EZEBUNWA 14 Appellant’s Brief
No. 03-14-00682-CR
Armstrong v. State is even more analogous to the current fact
scenario, in which a woman in a car accident. Armstrong v. State, 82 S.W.
3d 444 (Tex. App.-Austin 2002). Officers responded to an accident scene in
which a two women and three children had been in the car, and based on an
observation that Armstrong “[w]as more interested in locating this purple
bag….than worrying about the children.” Id at 446. Felicia, Armstrong’s
passenger, was holding the bag and gave consent to search it. Id. The
officer never saw Armstrong holding the bag in question, but attributed the
contents, which was cocaine, to Armstrong because of the report that she
was concerned about it. Id.
The court explained, that to prove drug possession, the State must
show (1) a defendant exercised care, custody, control, or management over
the drugs, and (2) that she knew she possessed a controlled substance.
Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995) (en banc);
Martinets v. State, 884 S.W.2d 185, 187 (Tex.App.-Austin 1994, no pet.).
When a defendant is not in exclusive possession or control of the place
where the drugs are found, the State must affirmatively link the defendant
with the drugs. Brown, 911 S.W.2d at 747-48; Hackleman v. State, 919
S.W.2d 440, 444 (Tex.App.-Austin 1996, pet. ref'd, untimely filed);
PETER EZEBUNWA 15 Appellant’s Brief
No. 03-14-00682-CR
Martinets, 884 S.W.2d at 187. More than the defendant's mere presence
near the drugs is required, especially when several people are present or in
possession of the place where the drugs are found. Villarreal v. State, 865
S.W.2d 501, 503 (Tex.App.-Corpus Christi 1993, pet. ref'd); Estrada v.
State, 643 S.W.2d 753, 756 (Tex.App.-San Antonio 1982, no pet.).
It went on to explain that the State's evidence need not exclude every
reasonable hypothesis other than the defendant's guilt, but it must show facts
and circumstances that, viewed in the totality of the circumstances, indicate
the defendant's knowledge and control over the drugs. See Brown, 911
S.W.2d at 748; Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th
Dist.] 2001, no pet.); Howard v. State, 972 S.W.2d 121, 124 (Tex.App.-
Austin 1998, no pet.). Affirmative links between a defendant and illegal
drugs may include: the defendant's presence when the drugs are found;
whether the drugs or other contraband were in plain view; the defendant's
proximity to and the accessibility of the drugs; whether the defendant was
under the influence of drugs when the drugs were found; whether the
defendant possessed other contraband or drug paraphernalia; whether the
defendant made incriminating statements or furtive gestures or tried to flee;
whether there was any noticeable drug odor; whether the defendant had the
PETER EZEBUNWA 16 Appellant’s Brief
No. 03-14-00682-CR
right to possess the place where the drugs were found; and whether that
place was enclosed. See Hyett, 58 S.W.3d at 830; Martinets, 884 S.W.2d at
188; Villarreal, 865 S.W.2d at 503-04. In the current case under review, the
only links are the defendant’s proximity and presence.
In its finding, the court decided,
“ Although the State had the burden of showing Armstrong
knowingly and intentionally exercised care, custody, control, or
management over the drugs found in the purple bag, it was not
obligated to prove this beyond a reasonable doubt or to exclude
all reasonable alternative hypotheses other than Armstrong's
guilt. See Brown, 911 S.W.2d at 748; Cobb v. State, 851
S.W.2d 871, 873 (Tex. Crim. App. 1993)(en banc); Martinets,
884 S.W.2d at 187. However, the State was obligated to
affirmatively link Armstrong to the drugs by a preponderance
of the evidence. See Brown, 911 S.W.2d at 748; Cobb, 851
S.W.2d at 873. We do not believe the State carried its burden of
producing evidence that could create the reasonable belief that
Armstrong both exercised care, custody, or control over the
drugs and knew she possessed a controlled substance. See
PETER EZEBUNWA 17 Appellant’s Brief
No. 03-14-00682-CR
Brown, 911 S.W.2d at 747; Solis, 589 S.W.2d at 447; Kulhanek,
587 S.W.2d at 426. The affirmative links are too weak to
support the district court's finding that Armstrong violated her
probation by intentionally and knowingly possessing the drugs
found in the purple bag.” Armstrong at 450.
In the case at hand, the Appellant was never seen with the
drugs, he did not appear to be under the influence of any substance,
there was no smell of a substance noted, there were other people
around, and unlike the Armstrong case, and he never made any
affirmative statement linking him to the drugs. Therefore, the
evidence was insufficient to support a finding that the Appellant
violated his probation by a preponderance of the evidence.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays this Court to reverse the district court’s order and remand for further
proceedings. Also alternatively, Appellant respectfully prays this Court to
reverse his sentence and remand the case to the trial court for further
proceedings.
PETER EZEBUNWA 18 Appellant’s Brief
No. 03-14-00682-CR
Respectfully submitted,
/s/Amber Vazquez Bode
AMBER VAZQUEZ BODE
Attorney at Law
1004 West Ave.
Austin, Texas 78701
(512) 220-8507
SBN # 24039225
ATTORNEY FOR APPELLANT
PETER EZEBUNWA 19 Appellant’s Brief
No. 03-14-00682-CR
CERTIFICATE OF SERVICE
By affixing my signature above, I hereby certify that a true and
correct copy of the forgoing APPELLANT’S BRIEF, was filed through the
Third Court of Appeals Efile Texas system and through the United States
Postal Service to:
Catherine Scales
Assistant District Attorney
Travis County District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
On July 6, 2015.
PETER EZEBUNWA 20 Appellant’s Brief
No. 03-14-00682-CR
CERTIFICATE OF COMPLIANCE
I certify that this document contains 4,194 words (counting all parts of
the document). The body text is in 14 point font, and the footnote text is in
12 and 14 point font.
PETER EZEBUNWA 21 Appellant’s Brief
No. 03-14-00682-CR