ACCEPTED
12-15-00073-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/20/2015 4:35:19 PM
CATHY LUSK
CLERK
No. 12-15-00073-CR
RECEIVED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 7/20/2015 4:35:19 PM
CATHY S. LUSK
Clerk
YAGO SANTAIN FOUNTAIN
Appellant,
v. 7/20/2015
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0896-14
ORAL ARGUMENT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702
Trial Counsel:
Thad Davidson
329 S. Fannin Ave.
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES .......................................................................................... v
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 5
Standard of Review .............................................................................................. 5
Applying this Standard of Review to Drug Posession Cases ................................ 6
I. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE
THAT APPELLANT POSSESSED THE MARIJUANA
RECOVERED ................................................................................................. 8
A. The Factors Linking Mr. Fountain to the Marijuana Were Minor................ 10
B. The Factors Not Linking Mr. Fountain to the Marijuana Were
Significant ..................................................................................................... 11
CONCLUSION AND PRAYER .................................................................................. 23
CERTIFICATE OF SERVICE ..................................................................................... 24
CERTIFICATE OF COMPLIANCE ............................................................................ 24
iii
INDEX OF AUTHORITIES
FEDERAL COURTS OF APPEAL:
United States v. Michelena-Orovio,
702 F.2d 496 (5th Cir. 1983) ........................................................................ 22, 23
United States v. Ferg,
504 F.2d 914 (5th Cir. 1974) ......................................................................... 19, 20
United States v. Gordon,
700 F.2d 215 (5th Cir. 1983) ......................................................................... 21
United States v. Hernandez-Beltran,
867 F.2d 224 (5th Cir. 1989) ......................................................................... 18
United States v. Littrell,
574 F.2d 828 (5th Cir. 1978) ......................................................................... 22
United States v. Moreno-Hinojosa,
804 F.2d 845 (5th Cir. 1986) ......................................................................... 21
United States v. Phillips,
496 F.2d 1395 (5th Cir. 1974) ...................................................................... 9
United States v. Ramos,
476 F.2d 624 (9th Cir. 1973) ......................................................................... 22
United States v. Schoor,
462 F.2d 953 (5th Cir. 1972) ........................................................................ 22
United States v. Smith,
20 Fed. Appx. 258 (6th Cir. 2001) ................................................................. 20-21
United States v. Stanley,
24 F.3d 1314 (11th Cir. 1994) ....................................................................... 21
United States v. Zule,
581 F.2d 1218 (5th Cir. 1978) ....................................................................... 22
iv
TEXAS COURT OF CRIMINAL APPEALS:
Brown v. State,
911 S.W.2d 744 (Tex.Crim.App. 1995) ....................................................... 15, 18
Chambers v. State,
711 S.W.2d 240 (Tex.Crim.App. 1986) ........................................................ 13
Cude v. State,
716 S.W.2d 46 (Tex.Crim.App. 1986) ......................................................... 6
Curry v. State,
30 S.W.3d 394 (Tex.Crim.App. 2000) ......................................................... 5
Davis v. State,
947 S.W.2d 240 (Tex.Crim.App. 1997) ....................................................... 11
Deshong v. State,
625 S.W.2d 327 (Tex.Crim.App. 1981) ....................................................... 8
Dewberry v. State,
4 S.W.3d 735 (Tex.Crim.App. 1999) ........................................................... 5
Dickey v. State,
693 S.W.2d 386 (Tex.Crim.App. 1984) ........................................................ 23
Evans v. State,
202 S.W.3d 158 (Tex.Crim.App. 2006) ........................................................ passim
Fisher v. State,
851 S.W.2d 298 (Tex.Crim.App. 1993) ....................................................... 5
Glass v. State,
681 S.W.2d 599 (Tex.Crim.App. 1984) ........................................................ 10-11
Harvey v. State,
487 S.W.2d 75 (Tex.Crim.App. 1972) ......................................................... 7, 13, 15
Hernandez v. State,
517 S.W.2d 782 (Tex.Crim.App. 1975) ....................................................... 9
v
TEXAS COURT OF CRIMINAL APPEALS (CON’T):
King v. State,
895 S.W.2d 701 (Tex.Crim.App. 1995) ........................................................ 5
Lee v. State,
214 S.W.2d 619 (Tex.Crim.App. 1948) ....................................................... 22
Martin v. State,
753 S.W.2d 504 (Tex.Crim.App. 1985) ....................................................... 6
Matson v. State,
819 S.W.2d 839 (Tex.Crim.App. 1991) ........................................................ 5
Meeks v. State,
692 S.W.2d 504 (Tex.Crim.App. 1985) ....................................................... 6
Narvaiz v. State,
840 S.W.2d 415 (Tex.Crim.App. 1992) ....................................................... 5
Oaks v. State,
642 S.W.2d 174 (Tex.Crim.App. 1982) ........................................................ 15
Poindexter v. State,
153 S.W.3d 402 (Tex.Crim.App. 2005) ....................................................... 6, 8, 9
Pollan v. State,
612 S.W.2d 594 (Tex.Crim.App. 1981) ........................................................ 6-7
Urbano v. State,
837 S.W.2d 114 (Tex.Crim.App. 1992) ....................................................... 23
Valdez v. State,
623 S.W.2d 317 (Tex.Crim.App. 1981) ....................................................... 18
Wesbrook v. State,
29 S.W.3d 103 (Tex.Crim.App. 2000) ......................................................... 5
Williamson v. State,
244 S.W.2d 202 (Tex.Crim.App. 1951) ....................................................... 22, 23
vi
TEXAS COURTS OF APPEAL:
Aguilar v. State,
279 S.W.3d 350 (Tex.App.—Austin 2007) .................................................. passim
Allen v. State,
249 S.W.3d 680 (Tex.App.—Austin 2008) .................................................. passim
Bates v. State,
155 S.W.3d 212 (Tex.App.—Dallas 2004) .................................................. 7
Batiste v. State,
217 S.W.3d 74 (Tex.App.—Houston [1st Dist.] 2006) ................................ 7
Brazier v. State,
748 S.W.2d 505 (Tex.App.—Houston [1st Dist.] 1998) ............................... 13
Cedano v. State,
24 S.W.3d 406 (Tex.App.—Houston [1st Dist.] 2000) ................................ 13
Copeland v. State,
747 S.W.2d 14 (Tex.App.—Houston [1st Dist.] 1988) ................................ 13
De la Garza v. State,
898 S.W.2d 376 (Tex.App.—San Antonio 1995).......................................... 13-14
Edwards v. State,
178 S.W.3d 139 (Tex.App.—Houston [1st Dist.] 2005) .............................. 10, 11
Flores v. State,
756 S.W.2d 86 (Tex.App.—San Antonio 1988) ........................................... 9
Garcia v. State,
218 S.W.3d 756 (Tex.App.—Houston [1st Dist.] 2007) .............................. 7
Gilbert v. State,
874 S.W.2d 290 (Tex.App.—Houston [1st Dist.] 1994) .............................. 9-10, 13
Grant v. State,
989 S.W.2d 428 (Tex.App.—Houston [14th dist.] 1999) ............................. 8
vii
TEXAS COURTS OF APPEAL (CON’T):
Gomez v. State,
331 S.W.3d 832 (Tex.App.—Amarillo 2011) ............................................... 23
Hurtado v. State,
881 S.W.2d 738 (Tex.App.—Houston [1st Dist.] 1994) ............................... 10
Lassaint v. State,
79 S.W.3d 736 (Tex.App.—Corpus Christi 2002) ....................................... 11-12
Mares v. State,
801 S.W.2d 121 (Tex.App.—San Antonio 1990).......................................... 15
Moreno v. State,
821 S.W.2d 344 (Tex.App.—Waco 1991) .................................................... 18
Roberson v. State,
80 S.W.3d 730 (Tex.App.—Houston [1st Dist.] 2002) ................................. 7, 17, 21
Taylor v. State,
106 S.W.3d 827 (Tex.App.—Dallas 2003) .................................................. 13
Villegas v. State,
871 S.W.2d 894 (Tex.App.—Houston [1st dist.] 1994) ............................... 10
Whitworth v. State,
808 S.W.2d 566 (Tex.App.—Austin 1991) .................................................. 11
Williams v. State,
906 S.W.2d 58 (Tex.App.—Tyler 1995) ....................................................... 7
Willis v. State,
192 S.W.3d 585 (Tex.App.—Tyler 2006) .................................................... 8
viii
STATUTES:
TEX. HEALTH & SAFETY CODE § 481.002 ......................................................... 6
TEX. PEN. CODE § 1.03(b) ................................................................................. 6
ix
No. 12-15-00073-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
YAGO SANTAIN FOUNTAIN
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0896-14
TO THE HONORABLE JUSTICES OF THE COURT:
Comes now, Yago Fountain, by and through his attorney of record,
Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of
Appellate Procedure, and would show the Court as follows:
STATEMENT OF THE CASE
Yago Fountain seeks to appeal his conviction and sentence for the fel-
ony offense of possession of marijuana, rendered against him in March of
this year in the 114th District Court of Smith County. (I CR 117). Mr.
Fountain was indicted for this offense in June of last year, entered a plea of
“not guilty,” and proceeded to trial by jury. (I CR 1, 117). Ultimately, Mr.
Fountain was convicted and sentenced to serve a term of ten years’ confine-
ment. (I CR 117). Sentence was pronounced on 17 March 2015 and notice
of appeal then timely filed. (I CR 117, 142).
ISSUES PRESENTED
I. THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO PROVE THAT APPELLANT POSSESSED THE
MARIJUANA RECOVERED.
STATEMENT OF THE FACTS
In September of 2013 a local DPS trooper was patrolling an area of I-
20 within Smith County. (XI RR 40). While doing so, he observed a vehi-
cle pass that, contrary to the law, did not have a working light over its li-
cense plate. (XI RR 42). For this reason, the officer initiated a traffic stop
of the vehicle as it travelled eastbound towards Shreveport. (XI RR 43).
2
As he approached the now-stopped car, the officer observed two oc-
cupants: the driver, Mr. Lapatrick Mitchell, and the passenger, Mr. Yago
Fountain, the Appellant in this case. (XI RR 45). According to the officer,
Mr. Yago had unbuckled his seatbelt and appeared nervous and “very odd.”
(Id.). Consequently, the officer, who by then had also determined that nei-
ther Mr. Fountain nor Mr. Mitchell were the registered owners of the vehi-
cle, began to question the two occupants regarding their trip. (XI RR 50).
In response to questioning, Mr. Mitchell explained that the two had
travelled to Dallas to fix or purchase a new tire. (XI RR 50-51). Additional-
ly, Mr. Mitchell stated that they had taken Mr. Fountain’s aunt to Dallas.
(XI RR 51). Mr. Fountain gave a similar version of events, though not ex-
actly the same, but did say it was Mr. Mitchell’s aunt, not his, that was taken
to Dallas. (XI RR 57-58); (see also XI RR 58-59 discussing other, minor in-
consistencies).
Based on what he was observing, the officer requested, and Mr.
Mitchell granted, consent to search his vehicle. (XI RR 61). The search ini-
tially failed to reveal any contraband but the officer did discover some plas-
tic wrap and axle grease; items he said could be used to hide drugs from
drug dogs. (XI RR 63). However, as the officer stuck his head underneath
the dash on the driver’s side of the car, he noticed the smell of marijuana.
3
(XI RR 64). This led him to open the hood of the car where he discovered
wrapped bundles of marijuana sitting on top of the engine. (XI RR 66-67).
Mr. Mitchell’s response to the discovery was to remain silent when ques-
tioned while Mr. Yago adamantly stated “it wasn’t his.” (XI RR 144).
After finding the marijuana the officer arrested both Mr. Fountain and
Mr. Mitchell for the felony offense of possession of marijuana. (XI RR
144). In June of last year, Mr. Fountain was indicted for this offense and en-
tered a plea of “not guilty.” (I CR 1, 117). Following a trial by jury in the
114th District Court, Mr. Fountain was convicted and sentenced to serve a
term of ten years’ confinement. (I CR 117). Sentence was pronounced on
17 March 2015 and notice of appeal then timely filed. (I CR 117, 142).
SUMMARY OF THE ARGUMENT
Where the record before the Court, even viewed in the light most fa-
vorable to the verdict, shows only that a defendant may have been present at
the same location as drugs seized from a vehicle in which he was a passen-
ger, the evidence is legally insufficient to support a conviction for posses-
sion of that drug.
4
ARGUMENT
Standard of Review
Whether evidence is legally sufficient is a question of law reviewed in
the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103,
111 (Tex.Crim.App. 2000); Matson v. State, 819 S.W.2d 839, 846
(Tex.Crim.App. 1991). The issue before the Court is whether a rational trier
of fact could have found all the elements of the offense beyond a reasonable
doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). When
undertaking this review the Court will not reweigh or resolve conflicts in the
evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).
Any inconsistencies that may be present are resolved in favor of the verdict.
Curry, 30 S.W.3d at 406. However, “if, based on all the evidence, a reason-
ably minded jury must necessarily entertain a reasonable doubt of the de-
fendant’s guilt, due process requires that [the Court] reverse and order a
judgment of acquittal.” Fisher v. State, 851 S.W.2d 298, 302
(Tex.Crim.App. 1993) (quoting Narvaiz v. State, 840 S.W.2d 415, 423
(Tex.Crim.App. 1992). This standard applies to both direct and circumstan-
tial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).
5
Applying this Standard of Review to Drug Possession Cases
Applying these standards to cases where a defendant has been alleged
to be in possession of a controlled substance, the Court of Criminal Appeals
has held that, as an essential element of their case, the State must prove that
a defendant exercised control, management, or care of the substance and that
the accused knew that the matter possessed was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see also TEX. HEALTH &
SAFETY CODE ANN. 481.002(38) (Vernon 2007); TEX. PEN. CODE ANN. §
1.03(b) (Vernon 2007). Possession may be proved by direct or circumstan-
tial evidence, but the evidence must be such that it establishes a defendant’s
connection with a drug was more than “fortuitous.” Id.
In establishing possession the State does not have to prove that a de-
fendant had sole or exclusive possession of a controlled substance. Cude v.
State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). However, a defendant’s
mere presence, particularly where he did not have exclusive possession of
the location where the contraband was found, is insufficient in and of itself
to establish possession. Evans v. State, 202 S.W.3d 158, 162
(Tex.Crim.App. 2006); Martin v. State, 753 S.W.2d 384, 387
(Tex.Crim.App. 1988); Meeks v. State, 692 S.W.2d 504, 511
(Tex.Crim.App. 1985); Pollan v. State, 612 S.W.2d 594, 596
6
(Tex.Crim.App. 1981); Batiste v. State, 217 S.W.3d 74, 80 (Tex.App.—
Houston [1st Dist.] 2006, no pet.). Neither does a defendant’s presence in
the vicinity of contraband itself, or others using or possessing the same, sup-
port a finding that that person is a joint possessor or a party to the offense.
Harvey v. State, 487 S.W.2d 75, 77 (Tex.Crim.App. 1972); Garcia v. State,
218 S.W.3d 756, 763 (Tex.App.—Houston [1st Dist.] 2007, no pet.).; Rob-
erson v. State, 80 S.W.3d 730, 735 (Tex.App.—Houston [1st Dist.] 2002,
pet. ref’d). Thus, the critical inquiry is “whether there was evidence of cir-
cumstances, in addition to mere presence, that would adequately justify the
conclusion that the defendant knowingly possessed the substance.” Evans,
202 S.W.3d at 162 n.9. There is neither a set formula nor a minimum num-
ber of “links” needed to establish possession. Bates v. State, 155 S.W.3d
212, 216-17 (Tex.App.—Dallas 2004, no pet.); Williams v. State, 906
S.W.2d 58, 65 (Tex.App.—Tyler 1995, pet. ref’d).
7
I. THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO PROVE THAT APPELLANT POSSESSED THE
MARIJUANA RECOVERED.
Because Mr. Fountain was one of two persons who were present in
the vehicle in which the marijuana was found and did not have exclusive
control over the vehicle in which it was located, there must be “additional
independent facts and circumstances connecting or linking the accused to the
knowing possession of contraband.” Allen v. State, 249 S.W.3d 680, 690-91
(Tex.App.—Austin 2008, no pet.) (citing Willis v. State, 192 S.W.3d 585,
593 (Tex.App.—Tyler 2006, pet. ref’d). Therefore, in order to support Mr.
Fountain’s conviction, at trial the State must have produced evidence that
showed “more than a strong suspicion or mere probability of guilt.” Id. at
693 (citing Grant v. State, 989 S.W.2d 428, 433 (Tex.App.—Houston [14th
Dist.] 1999, no pet.)). As the Court of Criminal Appeals has held:
[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 un-
less there are additional independent facts and circumstances
which affirmatively link the accused to the contraband.
Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327,
329 (Tex.Crim.App. 1981)). In particular, where contraband has been hid-
den “the State must link the accused to the contraband in such a manner that
a reasonable inference arises that the accused knew of its existence and its
8
whereabouts and that the object possessed was contraband.” Allen, 249
S.W.3d at 694; see also Poindexter, 153 S.W.3d at 406. “Proof of mere
proximity to contraband is insufficient to establish actual constructive pos-
session or the element of knowledge.” Allen, 249 S.W.3d at 695 (citing
United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1974); Hernandez v.
State, 517 S.W.2d 782, 784 (Tex.Crim.App. 1975); Flores v. State, 756
S.W.2d 86, 88 (Tex.App.—San Antonio 1988, pet. ref’d). To establish this
proof in the context currently before the Court, where the defendant and con-
traband are in a vehicle, courts have looked to such factors as:
1. Was the contraband in plain view;
2. Was the contraband conveniently accessible to the accused;
3. Was the accused the owner of the vehicle;
4. Was the accused the driver of the vehicle;
5. Was the contraband on the same side of the vehicle as the
accused;
6. Was the contraband in plain view;
7. Was there an odor of the contraband;
8. Did the accused have any other paraphernalia on his person;
9. Did the physical condition of the accused indicate consump-
tion of the contraband found; and
10. Did the accused engage in conduct indicating a
consciousness of guilt?
9
Gilbert. v. State, 874 S.W.2d 290, 298 (Tex.App.—Houston [1st Dist.] 1994,
pet. ref’d); see also Evans, 202 S.W.3d at 161 n.9; Edwards v. State, 178
S.W.3d 139, 143 (Tex.App.—Houston [1st Dist.] 2005, no pet.). A review
of these factors in the instant case reveals that the State failed to make its
burden in this case.
A. The Factors Linking Mr. Fountain to the Marijuana Were Minor
First, Appellant would concede that Mr. Fountain was in the vehicle
from which the marijuana was recovered and that can be a factor tending to
indicate possession. (XI RR 45); Gilbert, 874 S.W.2d at 298; see also Hur-
tado v. State, 881 S.W.2d 738, 743 (Tex.App.—Houston [1st Dist.] 1994,
pet. ref’d); see Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.—Houston
[1st Dist.] 1994, pet. ref’d). Additionally, the detaining officer described
Mr. Fountain as being “nervous,,” another fact that can indicate an con-
sciousness of guilt. (XI RR 56). However, it is important to remember, as
the Court of Criminal Appeals has noted:
We believe that in this day and time that when a citizen is sud-
denly facing an imminent confrontation with police officers for
unknown reasons, most citizens with nothing to hide will never-
theless manifest an understandable nervousness in the presence
of the officer. Not only the guilty, but the not guilty as well,
will react much the same … exercising a natural impulse.
Thus, the appearance of being nervous is as consistent with a
person being guilty of having committed or preparing to com-
mit a criminal wrong as with a person not being guilty of any-
thing more than being in the wrong place at the wrong time.
10
Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984); see also Davis
v. State, 947 S.W.2d 240, 248 (Tex.Crim.App. 1997) (same).
Finally, the officer raised questions about the conflicting stories Mr.
Fountain and the driver gave as to their reason for traveling to Dallas. (XI
RR 57-59). Here, the Court should note that although the officer found it
unbelievable that someone would drive from Shreveport to Dallas to save
money when buying a wheel, there was, in fact, a newly purchased wheel in
the car. (XI RR 104).
Even assuming that these factors indicate some consciousness of guilt,
they constitute almost the entirety of the evidence against Mr. Fountain and
when the Court considers this evidence in light of the record as a whole, the
weight the Court should give this factor is significantly less than it may ini-
tially appear. See Edwards, 178 S.W.3d at 143 (the issue before an appellate
court is the logical force of the various factors in light of the record as a
whole); Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.—Austin 1991,
pet. ref’d) (same).
B. The Factors Not Linking Mr. Fountain to the Marijuana Were
Significant
For example, the record makes clear that there was no odor of contra-
band that would reasonably put a nearby person on notice as to what may
have been hidden in the engine area of the vehicle. (XI RR 64); See, e.g.,
11
Lassaint v. State, 79 S.W.3d 736, 744 (Tex.App.—Corpus Christi 2002, no
pet.) (discussing odor of drugs as possible link). In fact, the detaining of-
ficer testified that the limited odor of marijuana he did observe was discov-
ered only after he put his head “up underneath [the] dash” of the car; it could
not be detected merely by entering the vehicle. (XI RR 124-25). Moreover,
the odor was discovered on the driver’s side of the vehicle’s dash opposite
where Mr. Fountain was seated:
I stand by my statement that I didn’t smell [the marijuana] until
I started searching the vehicle and actually stuck my head on
the driver’s side up into the dash. When I was looking in that
area, that’s when I smelled it.
(XI RR 108).
Given the location of the marijuana, under the hood and resting on top
of the engine, there can also be no argument but that the marijuana was not
in plain sight and not then under the direct control of Mr. Fountain. (XI RR
66, 110) As such, the record fails to reveal any direct or circumstantial evi-
dence that Mr. Fountain had actual knowledge of what, if anything, another
person may have placed under the hood of the car. See Allen, 249 S.W.3d at
695; Lassaint, 79 S.W.3d at 746 (proving mere proximity to contraband is
not legally sufficient to prove possession).
12
Importantly, when asked about the marijuana, Mr. Fountain made no
incriminating statements, he did not attempt to flee, was not then under the
influence of any illegal substance, and was not found to be in possession of
any other contraband. Gilbert, 874 S.W.2d at 298; See also Copeland v.
State, 747 S.W.2d 14, 16-17 (Tex.App.—Houston [1st Dist.] 1988, no pet.)
(evidence was insufficient to link passenger to marijuana that passenger tes-
tified was thrown onto the floorboard by the vehicle’s driver), rev’d in part
by Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App. 1986); but see Har-
vey, 487 S.W.2d at 77 (the State is not required to prove exclusive posses-
sion); Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.—Houston [1st Dist.]
2000, no pet) (same); Brazier v. State, 748 S.W.2d 505, 508 (Tex.App.—
Houston [1st Dist.] 1998, pet. ref’d) (affirmative link existed between both
passenger and driver); see Taylor v. State, 106 S.W.3d 827, 831
(Tex.App.—Dallas 2003, no pet.) (discussing factors).
Finally, there was no evidence that Mr. Fountain owned or ever oper-
ated the vehicle from which the contraband was recovered, his fingerprints
were not found on the marijuana packaging, and there were no firearms or
other weapons located on or near either Mr. Fountain or the driver of the ve-
hicle. (XI RR 49, 57, 110, 113, 135). Evans, 202 S.W.3d at 161 n.9 (dis-
cussing factors to consider including ownership); De la Garza v. State, 898
13
S.W.2d 376, 379 (Tex.App.—San Antonio 1995, no pet.) (discussing pres-
ence of firearm as a factor). Even the officer who arrested Mr. Fountain
admitted that the only reason he did so was, basically, because the drugs had
to belong to somebody:
State: All right. [Defense counsel] asked you if you ever saw
Mr. Fountain or [the driver] in control or management or custo-
dy of the marijuana. Did you actually see them place it there or
move it or remove it?
Officer: No, sir, I did not.
State: Well, why is it that you arrested Mr. Fountain then?
Officer: Because the marijuana’s in the – I mean, there’s a
large sum of marijuana. Somebody put it there. It’s in the
structure of the vehicle. I mean, you don’t borrow somebody’s
car, and they leave 10 pounds of marijuana in there. That’s not
– that’s not feasible.
…
Took them both into custody. I read them both their Miranda
rights. Tried to, you know, -- “Hey, who’s is this?” You know,
there’s – it’s not like it was in his pocket or in a bag. It’s in the
structure of the vehicle.
I asked them whose it was, and you know, [the driver] refused
to speak, and Mr. [Fountain] just said it wasn’t his. That’s all I
got.
(XI RR 143-44).
14
But if that is all the State has they should not have a conviction: the
law does not permit an officer to arrest or a jury to convict someone just be-
cause they happen to be in a location where drugs were recovered and, well,
they must belong to somebody. Allen, 249 S.W.3d at 691; Evans, 202
S.W.3d at 162; Harvey, 487 S.W.2d at 77.
In fact, mere presence does not make an accused a party to joint pos-
session even if the accused knows of the existence of the contraband and has
knowledge of an offense. Oaks v. State, 642 S.W.2d 174, 177
(Tex.Crim.App. 1982); Allen, 249 S.W.3d at 692; Mares v. State, 801
S.W.2d 121, 126 (Tex.App.—San Antonio 1990, no pet.) Thus, where, as
here, even in the light most favorable to the State all that was shown was
that Mr. Fountain was in the mere presence of contraband, the overwhelming
lack of any meaningful evidence that he exercised actual or constructive
care, custody, or control over the marijuana reveals that he did not legally
posses it. See, e.g., Allen, 249 S.W.3d at 693 (holding that the central issue
in cases of this nature is whether the proof at trial showed “more than a
strong suspicion or mere probability of guilt”); see also Brown v. State, 911
S.W.2d 744, 747 (Tex.Crim.App. 1995) (evidence linking defendant to con-
traband must show that the connection was something more than fortuitous).
15
Viewing the State’s evidence in the checklist form outlined by the
Court of Criminal Appeals in Evans makes the quality of its evidence clear:
Was Mr. Fountain present at the sce- Yes. (XI RR 45).
ne when contraband was found?
Was Mr. Fountain in proximity to Yes, but only through the metal and
narcotics? plastic of the vehicle’s dash as the
marijuana was under the hood and
not in the vehicle’s passenger com-
partment. (XI RR 66).
Were the narcotics in plain view? No. (XI RR 110).
Was Mr. Fountain under the influ- No. (XI RR gen.).
ence when arrested?
Was Mr. Fountain in possession of No. (XI RR 144; XI RR gen.).
other contraband or narcotics when
arrested?
Did Mr. Fountain make incriminat- No, in fact, while Mr. Mitchell re-
ing statements when arrested? mained silent, Mr. Fountain denied
the drugs were his. (XI RR 92).
Did Mr. Fountain attempt to flee No. Mr. Fountain fully cooperated
when arrested? with the officer. (XI RR 100-01,
118).
Did Mr. Fountain make any furtive No. (XI RR 100-01, 118).
gestures when arrested?
16
Was there an odor of narcotics? Not from where Mr. Fountain was
seated. The odor could only be de-
tected when one placed their head
“up under the dash” on the driver’s
side of the car. (XI RR 64, 106, 108,
124).
Was there other contraband present? No. However, there was a small
amount of plastic wrap and axle
grease in the car, two things the of-
ficer testified are sometimes used to
mask the odor of drugs. (XI RR 63).
Did Mr. Fountain have the right to No. The vehicle in which he was
possess the place where the narcotics merely a passenger was not his and
were found? had been borrowed by Mr. Mitchell
from a friend of Mr. Mitchell’s. (XI
RR 49, 57).
Did Mr. Fountain have a large No. (XI RR gen.).
amount of cash or weapon on or
about his person?
Did Mr. Fountain’s behavior indicate No. He cooperated fully with offic-
a consciousness of guilt? ers. (XI RR 100-01, 118).
Evans, 202 S.W.3d at 162 n.12.
Viewing these factors in totality reveals that the record is lacking in
both substance and “logical force” to support the conclusion that Mr. Foun-
tain is guilty of the charged offense. Roberson v. State, 80 S.W.3d 730, 735
(Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (standard of review). At
17
best, the factors tend to show that Ms. Fountain associated with the driver
who was much more closely linked with the marijuana, but this is an offense
for which he cannot be convicted and punished. Valdez v. State, 623 S.W.2d
317, 321 (Tex.Crim.App. 1981) (op. on reh’g).
This case is similar to that of Moreno v. State, 821 S.W.2d 344, 352
(Tex.App.—Waco 1991, pet. ref’d), in which the Waco Court of Appeals
held that the evidence in that case was insufficient to prove the defendant
possessed 745 grams of cocaine found under the hood of a vehicle in which
he was a passenger (even where officers found eleven grams of cocaine in
the defendant’s wallet). In that case, the Waco Court held the evidence was
insufficient to affirmatively link the defendant to the cocaine under the hood
of the vehicle because the defendant: (1) was not connected with the owner-
ship or control of the car; (2) made no furtive gestures; (3) did not attempt to
escape; (4) made no incriminating statements; (5) was not under the influ-
ence of an illegal drug; and, (6) the odor of an illegal drug was not present in
or around the vehicle. Id.; see also Brown v. State, 911 S.W.2d 744, 748
(Tex.Crim.App. 1995) (“[E]ach defendant must … be affirmatively linked
with the drugs he allegedly possessed[.]”); United States v. Hernandez-
Beltran, 867 F.2d 224, 226-27 (5th Cir. 1989) (same).
18
The State seems to discount such holdings and instated argued that
any person in the car could have been arrested, prosecuted, and convicted
merely for being in the vehicle. (XI RR 200). Consider the incredibly ex-
pansive definition of possession the State urged the jury to adopt in this case:
If you were to walk – if you were to walk into someone’s home
and they had a bag – they had a desk, you walk over to a
friend’s house for tea or you walk over to go watch a movie,
and this [marijuana] right here is setting, you know, on the cof-
fee table, you’re in possession of it. That’s the truth of it.
That’s what the law says. You are in possession of it.
(XI RR 200).
But that is not “the truth of it” and it is certainly not “what the law
says.” As explained by the Fifth Circuit in United States v. Ferg, 504 F.2d
914, 917 (5th Cir. 1974):
The facts of this case illustrate the logic of this “mere presence”
rule. The government presents only two pieces of circumstan-
tial evidence in an attempt to link Ferg with the seized marijua-
na. Ferg was traveling with Shaw, the person who admitted
having purchased the marijuana, and Ferg was a passenger in
the car in which the marijuana was concealed. Beyond the ad-
mission by Ferg that he was a traveling companion of one
guilty of illegal possession of marijuana, the government failed
to establish that Ferg in any way violated [the federal drug stat-
ute]. The government’s evidence failed to prove that Ferg had
ever maintained possession of the contraband or had any inten-
tion of participating in the distribution of it [and] his companion
in no way implicated Ferg in the statement he made to federal
agents. There was no evidence to show that Ferg and Shaw had
traveled together for a sustained period of time after the mariju-
ana was admittedly obtained by Shaw. Moreover, the govern-
ment did not establish that Ferg had rented the car or even
19
shared the cost of rental. It was not even shown or claimed that
Ferg had ever driven the car or that he could drive an automo-
bile. We do not accept the government’s apparent invitation to
infer guilty by association.
Id. at 917.
The Sixth Circuit has held the same:
The government presented no direct evidence of actual posses-
sion by Smith [the defendant]. In fact, there is no direct evi-
dence that he knew of the drugs or exercised control over the
drugs or the vehicle, or that he was anything other than a pas-
senger in the vehicle. Thus, the issue before us is whether the
government presented sufficient circumstantial evidence to es-
tablish that Smith constructively possessed the methampheta-
mine and the amphetamine with the intent to distribute the
drugs.
…
While the evidence may have been sufficient to establish con-
structive, if not actual possession, of these drugs by the posses-
sor and driver of the vehicle, the problem with the convictions
of Smith, a passenger, is the lack of evidence showing any pos-
session of these drugs by him. The government presented no
evidence that Smith exercised any control over or had access to
these drugs. The drugs were found in a bag, covered by a shirt,
on the floor behind the driver’s seat. Additionally, the govern-
ment presented no evidence that Smith exercised any type of
control over the vehicle the bag in which the drugs were locat-
ed. The government’s only evidence was that Smith was a pas-
senger in a vehicle which contained drugs likely intended for
distribution…. The government also failed to present any evi-
dence to support Smith’s conviction on an aiding and abetting
theory. Even if Smith was aware of the drugs or the driver’s
involvement in illegal activity, that awareness would be insuffi-
cient to convict him of aiding an abetting possession of drugs
with intent to distribute.
20
United States v. Smith, 20 Fed. Appx. 258 (6th Cir. 2001) (unpublished) (cit-
ed for reference only); see Roberson v. State, 80 S.W.3d 730, 741
(Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (no evidence beyond mere
presence of three individuals in car together suggesting that they were work-
ing as a unit for any purpose); see also United States v. Stanley, 24 F.3d
1314, 1320-21 (11th Cir. 1994) (possession with intent to distribute convic-
tion reversed because of lack of evidence that defendant passenger in vehicle
had any knowledge of crack cocaine hidden under the dashboard); United
States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986) (“Even if [the
passenger] knew that [the driver] was making an illegal marijuana run, this
fact would not be sufficient evidence to establish his possession without an
additional showing that he was riding in the truck to participate in the pos-
session and distribution. The government did not make this additional
showing even circumstantially beyond a reasonable doubt.”); United States
v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983) (“We are unable to find any
evidence, beyond McMahon’s ‘mere presence’ in the truck, to indicate that
he had maintained control over the contraband, hand any intention of partic-
ipating in the distribution of the contraband, or had any knowledge of it
whatsoever. To affirm the defendant’s conviction would be to countenance
a conviction based on guilt by association.”); United States v. Zule, 581 F.2d
21
1218, 1221 (5th Cir. 1978) Constructive possession not shown where there
was no evidence that defendant owned or had control of car from which an-
other person removed contraband or that defendant had handled the contra-
band at any time); United States v. Littrell, 574 F.2d 828, 835 (5th Cir.
1978) (constructive possession not shown where there was no evidence that
defendant owned the car or was aware of cocaine presence in glove com-
partment or that he ever handled the cocaine at any time); United States v.
Ramos, 476 F.2d 624, 625 (9th Cir. 1973) (It is “well established that a pas-
senger may not be convicted [of possession] unless there is evidence con-
necting him with the contraband, other than his presence in the vehicle.”).
“In the final analysis … criminal substantive due process protects the
accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.”
United States v. Michelena-Orovio, 702 F.2d 496, 506 (5th Cir. 1983); Unit-
ed States v. Schoor, 462 F.2d 953, 959 (5th Cir. 1972); Williamson v. State,
156 Tex.Crim. 520, 244 S.W.2d 202, 204 (Tex.Crim.App. 1951); Lee v.
State, 152 Tex.Crim. 401, 214 S.W.2d 619, 622 (Tex.Crim.App. 1948).
Thus where the evidence, as it does here, reveals only that an accused may
have had the ability and opportunity to commit a crime, that is, the ability
and opportunity to posses the marijuana, that in and of itself is insufficient to
22
satisfy the standard of proof of the commission of an offense beyond a rea-
sonable doubt. Michelena-Orovio, 702 F.2d at 506; see also Urbano v.
State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Dickey v. State, 693
S.W.2d 386, 389 (Tex.Crim.App. 1984); Williamson v. State, 244 S.W.2d at
204. Based then on this record, Mr. Fountain would respectfully pray that
the Court hold the conviction to not be supported by legally sufficient evi-
dence and reverse the judgment of the trial court and render a judgment of
acquittal. Gomez v. State, 331 S.W.3d 832, (Tex.App.—Amarillo 2011, pet.
ref’d) (remedy for legal insufficiency is to reverse and render).
CONCLUSION AND PRAYER
Wherefore, premises considered, Mr. Fountain respectfully prays, be-
cause the record before the Court is legally insufficient to support his con-
viction, that the judgment of the trial court be reversed and a judgment of
acquittal be rendered.
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
23
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to
counsel for the State by efile mail concurrently with its filing in the Court.
/s/Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule
9.4 and consists of 5,152 words.
/s/ Austin Reeve Jackson
24