Vann, Gary

9tZ(5
No.

IN THE TEXAS COURT OF
ORIGINAL
CRIMINAL APPEALS

AT AUSTIN, TEXAS

-RECEIVED IN
COURT OF CRIMINAL APPEALS
GARY VANN/
AUG 10 2015

Petitioner/

v.

THE STATE OF TEXAS,

Respondent.

PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS
FILED IN
NO.0813-00104-CR COURT OF CRIMINAL APPEALS
APPEAL FROM AUG 14 20^5
362 DISTRICT COURT
Abel Acosta, Clerk
Of DENTON COUNTY, TEXAS

(TC#F-2011-1477-D)

PETITION FOR DISCRETIONARY REVIEW

Respectfully submitted,

Gary V^An,#1879613
Wymme Unit
810 FM 2821
Huntsville, Texas 77349
 IDENTITIES OF PARTIES AND COUNSEL

Petitioner:

GARY VANN, #1879613

WYNNE UNIT

810 FM 2821

HUNTSVILLE, TEXAS 77349

Trial Counsel:

MR. DOMINICK MARSALA

SBOT No. 24054063

1417 E. McKINNEY STREET

SIUTE 110

DENTON, TEXAS 76209

Co-Counsel/Counsel on Appeal:

MR. DAVID WACKER

SBOT No. 20625600

P.O. BOX 1142

DENTON, TEXAS S6§08-1142

Respondent:

PAUL JOHNSON/DENTON COUNTY DISTRICT ATTORNEY
And CHARLES ORBISONfAPPELLATE COUNSEL FOR THE
STATE OF TEXAS

1450 E. MMKTNNEY STREET

SUITE 3100

DENTON, TEXAS 76209

LINDSEY SHEGUIT, SBOT No. 24059464
RICK DANIEL, SBOT No. 00787324
(Assistant Criminal District Attorneys)

Trial Judge:

HON. SHERRY SHIPMAN

362ND DISTRICT COURT

DENTON COUNTY, TEXAS
 TABLE OF CONTENTS

SECTION: PAGE
Identities of Parties and Counsel I8i
Table of Contents ii .

Table of Authorities Cited...... iii

Petition For Discretionary Review 1
Preliminary Statement 1
Procedural Statement • 2
Statement of Facts 2

GROUND ONE FOR REVIEW:

The evidence wasjsufficient to prove guiltf beyond a reasonable
doubt based on a hypothetically correct jury charge and the decision
should be reversed.

GROUND TWO FOR REVIEW:
Court of Appeal, El Paso's determination that it was probable cause
was void of any knowledge that the confidential informant's basic o-P
knowledge was sufficient, and the numbers that the Court used to deter
mine reliability and credibility were based on later acquired facts;
the statements of Officer Newkirk were mere opinions that didn't allege
unusual activity or that a crime had been committed. This ruling was
in total variance of this and other Court of Appeals.
GROUND THREE FOR REVIEW:

The El Paso Court of Appeal erred in determining that the Inventory
Search wasn't controverted at trial. Petitioner's trial counsel pre
sented direct and testimonial evidence that Petitioner requested that
the vehicle be released to Ms. Riley; this presented a fact issue when
State law requires that for an Inventory Search to be lawful, there
must be a lawful arrest and lawful impoundment being there was no other
alternative to impound.
1SSR0UND FOUR FOR REVIEW:
The El Paso Court of Appeal erred in deeming that there was not evi
dence supporting Ms. Naylor's statement, or corroborating facts con
cerning Ms. Riley's statement or that Ms. Naylor was untrustworthy.

ii
 TABLE OF AUTHORITIES

AUTHORITIES: PAGE

Dixon v. State, 206 S.W.3d 613 4
Evans v. State, 202 S.W,3d at 161-162 3
Gorman v. State, 634 S.W.2d 681.. 2"3
Humason v. State, 728 S.W.2d at 363-65 3
Jackson v. Virginia,443 U.S.307,319,99 S.Ct.2781 61L.Ed.(1979)... 3
Menchaca v. State, 901 S.W.2d 652

Neese v. State, 930 S.W.2d 742 *

Ray v. State, 178 S.W.3d 836
State v. Denison, 607 N.W.2d 796(Minn.Ct.App. 2002)
Stull v. State, 772 S.W.2d 451..

Villarreal v. State, 286 S.W.3d 321

Villarreal v. State, 865 S.W.2d 501

PAGE
PENAL CODE:

3
V.T.CA. Penal Code 6.01(B)

TEXAS CODE OF PROFESSIONAL RESPONSIBILITY:

DR7-101(B)

DR7-102(B)

ill
 No.

IN THE TEXAS COURT OF

CRIMINAL APPEALS

AT AUSTIN, TEXAS

GARY VANN,
Petitioner,

Vs.

THE STATE OF TEXAS,
Respondent.

PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEAL

EL PASO, TEXAS

NO.08-13-00104-CR

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:

COMES NOW, I, Gary Vann, petitioner, pro se, herein, and make and
file this, his pro se Petition For Discretionary Review and would show
the following:

PRELIMINARY STATEMENT

This Court of Criminal Appeals under Art. 5 subsection 5 of the
Texas Constitution has final appellate jurisdiction coexistive with
the State; further Rule 68 of Texas Rules of Appellate Procedure invoke
the jurisdiction of this Court.
Petitioner seeks redress of Procedure violations that vary with this
Court of Criminal Appeals and the Constitution of The United States of
1.
America.

INVOKING RULE2

Petitioner humbly request under Rule 2 of the Rules of Appellate
Procedure that thia Court of Criminal Appeals wave the Rules that his
Petition For Discretionary Review doesn't conform to.
Pursuant to Haines v. Kerner, 404U.S. 519, 92 S.Ct. 594, 30 l.Ed.

2d 652(1972) (per curiam) pro se pleadings are to be liberally con
strued and held to less stringent standards than formal pleadings
drafted by lawyers.

PROCEDURAL STATEMENT

Petitioner, over objection was found guilty of the lesser included
offense of the charge by indictment; Possession With Intent To Deliver
in the 362nd District Court of Dentin, Texas, Judge Sherry Shipman pre
siding. Petitioner filed Notice of Appeal to the Court of Appeal, 2nd
District, Fort Worth, Texas; that &h» Court transferred Petitioner's
Appeal to the Court of Appeal, Eighth District, El Paso, Texas, the El
Paso Court affirmed June 17, 2015.

This Pro Se Petition For Discretionaey Review is hereby taken.

STATEMENTS OF' FACTS

On March eighth, 2011, Officer Kehdall Leonard received a call
from a confidential informant alleging that it "was possible" drugs #@
would be found under the gas cap of the truck driven by petitioner
(RR3:187); (officer Leonard Didn't file an affidavit or make report
concerning the matter). Officer Leonard, an officer with the Flower
Mound Police Department claiming jurisdiction issues called officer
Steven Newkirk of the lewisville Police Department, and these heresay
statements resulted in petitioner's arrest for Driving With Suspended
TJXtfffi^itiiMiiiai by petitioner produced charges of Manufacturing and Deli
very of Controlled Substances. The Grand Jury of Denton County, Texas
indicted petitioner for Possession With Intent To Deliver A Controlled
Substance, to wit: cocaine.
Petitioner was found guilty of the lesser included offense and
appealed.

GROUND ONE:

The evidence was insufficient to prove that petitioner voluntarily
possessed the contraband found under the cap'of the truck. (Gorman v.
2.
State, 634 S.W. 2d 681).
In receiving the sufficiency of the evidence, (Jackson v. Virginia
443 U.S. 307, 319, 99 S.St. 2781, 61L. Ed.560(1979), to determine
whether the State proved the elements of the offense beyond a reasonable
doubt, the sufficiency of the evidence is measured by a hypothetically
correct jury charge. Villarreal v. State, 286 S.W. 3d 321 (Tex.Crim.
App.2009).
Petitioner requested at trial that the language of the V.T.C.A.
Penal Code 6.01(b), be charged to the jury; the State Attorney agreed
and the Trial Judge granted thiS request. (RR3:203). This language
required the State to prove that petitioner had knowledge of the where-
a-bouts of the contraband; concurring opinion by Judge Clinton, Hj
iuma-

son v. State, 728 S.W. 2d 363 (1987). The Penal Code doesn't place any
additional burden on the State to prove the charged offense, but rather
on the defendant to prove his lack of knowledge. Petitioner's defense
at trial that someone other than than the defendant put the drugs under
the gas cap was supported by the evidence at trial and the affirmative
links that the El Paso Court of Appeal ruled linked petitioner to the
drugs. l.)Money; the direct and testimonial evidence at trial linked
Ms. Riley to the contraband; she claimed the money was hers, (See video
evidence. The State Attorney further distanced petitioner from the
4..
money and linked Ms. Riley in its closing statements. (RR4:38. 2.)
Driver of the vehicle; Officer Steven Newkirk testified that around 3-
3:30 PM, he received a call that deugs would possibly be found under
the gas cap of the truck in question. Ms. Riley, on video stated she
had just picked up her son from school which lets out at 3 or 3:30.
(See tape). She stated petitioner was at her apartment during this time
and that she had used the truck to run errands that day. Officer New
kirk testified he never saw petitioner put anything under the gas cap.
During the time in question, Ms. Riley was the only one unobserved
alone in the truck. 3.)The contraband found under the hood admitted
over objection was never linked to the cocaine and if so, Officer New-
kirk's testimony links Ms. Riley as well. (RR3:13319-20) and (RR3:140:
23-25). Mere presence in the same place as the controlled substance
alone is not sufficient to justify a finding of possession. Evans v.
State, 202 S.W.3d at 161-162. Reliance should not be placed solely
upon control of the vehicle to show knowledge. (Menchaca, 901 S.W.2d
at 652. Officer Newkirk testified that ther was no other evidence other

3.
than petitioner being the driver of the truck. (RR3:150:15-21). 4.)
Officer Newkirk stated these drugs were not in immediate reach of
petitioner. 5.) There was no testimony that petitioner tried to flee.
6.) No furtive gestures. 7.) Conflicting statements about relevant
matters; in fact when asked by Officer Showalther for petitioner's
license, petitioner told him that they were suspended. 8.) Petitioner
was not in a suspicious area. 9.) Petitioner had no special connection
to the contraband. 10.)Petitioner didn't make any incriminating state
ments. 11.) Petitioner didn't indicate any consciousness of guilty. 12)
Petitioner's physical condition did not indicate recent consumption of
narcotics. 13.) Contraband was not in plain view.
There was no evidence that exclusively linked petitioner to the
contraband. Villarreal v. State, 865 S.W. 2d 501 (Tex.App.Corpus Christi
1993). The evidence must establish affirmative links beyond mere pre
sence between the accused and the controlled substance. Humason v. Stae,

728 S.W.2d at 365.

The evidence did not prove beyond a reasonable doubt that petition
er possessed the contraband and the lower court should be reversed.

GROUND TWO:

The El Paso Court of Appeal determined there was probabl? cause

under the automotive exception to the Fourth Amend, of the United

States Constitution for the Search by Officer Bradley Showalther of the

Lewisville.Texas Police Department.

Petitioner will show that the lack of knowledge of the confidential

informant's heresay statemnt that didn't offer underlying circumstances

for basic of knowledge insufficient to prooe probable cause. Neese v.

State, 930 S.W.2d 742 TX.App. Beaumont 1996).

The El Paso Court used Officer Leonard's testimony that he used the

confidential informant 4 or 5 times was plain error in proving credibi

lity when trial records show (RR3:67) when the issue of credibility
was made an issue, this officer claimed the informant had worked ((two)

cases prior to the petitioner's arrest. Probable cause is based on facts
known at the time of search or arrest. Dixon v. State, 206 S.W.3d 613

4.
 This Court of Criminal Appeals has ruled that a statement saying

that an informant has never been convicted of a felony is sufficient

but one or two times doesn't prove credibility; Officer Leonard could

not show any fact that the informant hadn't put t£e drugs underfi the

gas cap. (RR3:68). The hearsay testimony shouldn't have been in the

record, but its surely not probable cause.

The El Paso Court further offered Officer Newkirk's opinion as a

factor in determinining probable cause. That the Court took Officer

Newkirk's testimony out of content in their ruling. This officer

stated that petitioner and a female exited an apartment, went to the

hood of the truck in question, then went to the back of the truck, went

back to the hood and "appear" to be placing something inside.(RR3:57:

23-24). In his opinion, I wasn't working on the truck (RR3:58:6$.

This Court of Criminal Appeals ruled in Stull v. State, 772 S.W.2d

451, and that line of cases that an officer's hunches, suspicion, or

good faith perception wasn't good or sufficient to constitute probable

cause. Petitioner set out that the information known to the officer at

the time of the search wasn't sufficient to constitute probable cause

and the ruling of the El Paso Court of Appeal should be reversed.

GROUND THREE:

Trial counsel requested that the jury be instructed that the evi

dence be suppressed because it was obtained through an invalid inven

tory search. The Court of Appeal of El Paso erred when it ruled there

was probable cause under the automobile exception, therefore an Article

38.23 CCP wasn't warranted and that trial counsel hadn't controverted

the issue. Trial counsel's questioning of Officer Bradley Showalther

presented an issue when he asked why Officer Showalther didn't release

5.
the truck to Ms. Riley as requested by Petitioner. Petitioner asks that

the Court of Criminal Appeals reverse the El Paso Court and ORDER A NEW

TRIAL.

GROUND FOUR:

The Court of Appeals concluded that the trial court erred by exclu

ding the evidence because it violated the petitioner's right to present

his "alternative perpetrator" defense.Alonzo v. State, 67 S.W.3d at

361-62. Petitioner's position is that the El Paso Court did not factor

that petitioner did not testify in his defense and the exclusion of

Ms. Naylor's testimony precluded altogether the presentation of the

defensive theory. Ray v. State, 178 S.W.3d 836, (Footnote 1). And if

the Appellate Court could not say beyond a reasonable doubt that the

jury would have found petitioner guilty even with the excluded evi

dence, error was shown.State v. Denison, 607 N.W.2d 796 (Minn-Ct.App.

2000).

The El Paso Court concluded Ms. Naylor was not trustworthy; Ms.

Naylor, a licensed member of the Legal Bar has never been disciplined

by that Bar; Texas Code of Professional Responsibility DR 7-101(B), DR
7-102(B) for violation of her OATH, and to deem her^untrustworthy is

a stretch. Ray v. State, 178 S.W.3d at 839. Ms Riley's attorney testi

fied that a phone conversation had taken place. (RR3:223:23-24). Ms.

Riley claimed that Ms. Naylor's statement was not accurate,<-"but peti-

tioner ask this Court, does the trial record and the video evidence

count for anything? The video shows Ms. Riley's statements of her use

of the truck thru-out the day and that she had just picked her son up

from school; Officer Leonard's testimony concerning Ms. Riley points

6.
to her q^tivity. And for the State's Attorney to claim they could not
interview Ms. Riley is untrue. Ms. Riley was placed on three (3) eight
year probations in January 2012; petitioner's attorney informed the
trial court and the District Attorney's Office of Ms. Riley's invol-
ment in May 2012 thru the time tfts. Riley was on probation and under the
jurisdiction of the Denton County Courts through their probation dept.
and as such they could have had Ms. Riley ordered to give a statement
as such at any time. Petitioner should not be pmnished for their delay.
Ms. Naylor's statement would not have confused the jury and would sup
port other facts that were made known.
The Court's exclusion of this evidence harmed petitioner and should

be reversed and a new trial ordered.

CONCLUSION

As caretakers of the law, I, Gary Vann, petitioner herein, ask this
Court to review all the evidence and apply £he law to the facts and
agree that a New TrialQ should be ordered.

PRAYER

I, Gary Vann, petitioner herein ask the Honorable Court to draw
guidance from PSALM 82, and grant this his Petition For Discretionary
Review in all things asked.

Respectfully submitted,

Gary Vann

UNSWORN DECLARARTION

I, Gary Vann, petitioner herein, being born May 7, 1955 in Dallas

7.
County, Texas do hereby swear that I am a prisoner housed at the Wynne
Unit, 810 f*M 2821, Huntsville, Texas 77349, do hereby swear that everY
thing herein is true and correct to the best of my knowledge under

penalty of perjury.

Respectfully submitted,

CERTIFICATE OF SERVICE

I, Gary Vann, do hereby certify that I have served a true and
correct copy of the above and foregoing Pro Se Petition For Discre
tionary Review upon the Denton County District Attorney's Office at
1450 East McKinney Street, Suite 3100, Denton, Texas 76209 on this
date, August , 2015.

Respectfullt submitted,

. J3/P% f)/tM4A>
Gary idnn, #1879613
Wynne Unit
810 FM 2821

Huntsville, Texas 77349

8.
 COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

GARY VANN, No. 08-13-00104-CR

Appellant, Appeal from

362nd District Court

THE STATE OF TEXAS, of Denton County, Texas

Appellee. (TC#F-2011-1477-D)

OPINION

Gary Vann appeals his conviction of possession of more than one gram but less than four

grams of cocaine, enhanced by two prior felony convictions. Appellant was charged with

possession of cocaine with intent to deliver but the jury found him guilty of the lesser-included

offense of possession of cocaine. The jury found both enhancement paragraphs true and

assessed Appellant's punishment at imprisonment for forty-five years. We affirm.

FACTUAL SUMMARY

Kendall Leonard is a detective with the Flower Mound Police Department and he works

in the Primary Response Unit which is responsible for narcotics and vice crime-related offenses.

He received a tip from a reliable confidential informant that Appellant was at the Wellington

Park Apartments in Lewisville but he would be leaving and would have drugs in the gas-filler

area of his pickup truck. Leonard did not have jurisdiction in Lewisville so he forwarded the
information to two Lewisville police officers assigned to the Narcotics Division, Steven Newkirk

and Duke Lee.

Newkirk determined that Appellant's driver's license was suspended and he had

outstanding warrants from Dallas County. Newkirk decided to investigate further by conducting

surveillance on the apartment complex and on Appellant's pickup truck. Before leaving the

police department, Newkirk briefed Officer Bradley Showalter on the situation and asked him to

go to the apartment complex area in a marked patrol unit in the event it became necessary to

make a traffic stop on Appellant. Bradley drove to the area and waited outside of the apartment

complex. Newkirk and Lee, who were dressed in plain clothes, arrived at the complex and began

conducting surveillance on the pickup truck and the apartment. Within fifteen or twenty

minutes, Appellant and a woman exited the apartment and walked over to the truck. Appellant

opened the hood of the truck and appeared to place something inside of the engine compartment.

He closed the hood, got in the vehicle, and drove away from the apartment complex. Newkirk

and Lee followed Appellant and they stayed in radio contact with Showalter by radio until he

stopped Appellant's vehicle.

After stopping the vehicle, Showalter confirmed through dispatch that Appellant's license

was suspended and he had outstanding warrants. Appellant was the only adult in the vehicle.1
Showalter placed Appellant under arrest for driving with a suspended license and pursuant to the

warrants. A woman arrived at the scene and asked for the vehicle to be released to her but

Showalter refused because he believed that it contained contraband. Officers subsequently

searched the vehicle and found a Mason jar containing three small baggies of marihuana in the

1 A small child was in the vehicle with Appellant.
-2
engine compartment. Additionally, they opened the gas filler door and found several baggies

containing a total of 2.52 grams of cocaine, 3.24 grams of hydrocodone with acetaminophen

(five pills), several white bars of alprazolam weighing a total of 14.62 grams, and two sertraline

hydrochloride pills. Cocaine typically sells on the street for $200 to $600 per gram, and

alprazolam and hydrocodone sells for $5 to $10 per pill.

SUFFICIENCY OF THE EVIDENCE

In Point of Error One, Appellant challenges the sufficiency of the evidence to prove that

he possessed the cocaine.

Standard ofReview

In reviewing the sufficiency of the evidence to determine whether the State proved the

elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.

Brooks v. State, 323 S.W.3d 893, 895-96 (Tex.Crim.App. 2010), citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, a reviewing court

must consider all evidence in the light most favorable to the verdict and in doing so determine

whether a rational justification exists for the jury's finding of guilt beyond a reasonable doubt.

Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of

fact is the sole judge of the weight and credibility of the evidence. See TEX.CODE CRIM. PROC.

Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). We

must presume that the factfinder resolved any conflicting inferences in favor of the verdict and

defer to that resolution. Dobbs, 434 S.W.3d at 170. When reviewing sufficiency of the

evidence, we are not permitted to reevaluate the weight and credibility of the evidence or

-3-
substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638

(Tex.Crim.App. 2010). Our task is to determine whether, based on the evidence and reasonable

inferences drawn therefrom, a rational juror could have found the essential elements of the crime

beyond a reasonable doubt. Id.

In our review, we consider both direct and circumstantial evidence and all reasonable

inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007). The standard of review is the same for both direct and circumstantial

evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010); Arzaga v.

State, 86 S.W.3d 767, 777 (Tex.App.~El Paso 2002, no pet.). Each fact need not point directly

and independently to the guilt of the accused, so long as the cumulative force of all the evidence,

when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support

the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); Arzaga, 86

S.W.3d at 777.

Possession ofa Controlled Substance

The sufficiency of the evidence is measured by reference to the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex.Crim.App. 2009). To support a conviction for unlawful possession of a controlled

substance, the State must prove: (1) that the defendant exercised care, custody, control, or

management over the substance; and (2) that he knew the matter possessed was contraband.

-4-
TEX.HEALTH&SAFETY CODE Ann. § 481.115(a)(West 2010); Evans v. State, 202 S.W.3d 158,

161 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005).

"Possession" is defined as "actual care, custody, control, or management." Tex.Health&

Safety Code Ann. § 481.002(38)(West Supp. 2014); Tex.Penal Code Ann. §1.07(a)(39)(West

Supp. 2014).

The evidence may be direct or circumstantial, but it must establish "that the accused's

connection with the [contraband] was more than just fortuitous." Poindexter, 153 S.W.3d at 406,

citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Mere presence in the same

place as the controlled substance alone is not sufficient to justify a finding of possession. Evans,

202 S.W.3d at 161-62; Harrison v. State, 555 S.W.2d 736, 737 (Tex.Crim.App. 1977).

However, when a defendant is exerting exclusive control over the vehicle, knowledge of the

contents of the vehicle, including knowledge of the contraband may be inferred. Menchaca v.

State, 901 S.W.2d 640, 652 (Tex.App.~El Paso 1995, pet. ref d). Although knowledge may be

inferred when the accused is the sole occupant of a vehicle, courts have cautioned that when

contraband is found in a hidden compartment of a vehicle, reliance should not be placed solely

upon control of the vehicle to show knowledge. Menchaca, 901 S.W.2d at 652. Instead,

courts have often required a showing of additional factors or "affirmative links" indicating

knowledge. See Menchaca, 901 S.W.2d at 652. The "affirmative links" rule protects the

innocent bystander — a relative, friend, or even a stranger to the actual possessor — from

conviction merely because of his fortuitous proximity to someone else's drugs. Evans, 202

S.W.3d at 161-62. Presence or proximity, when combined with other evidence, either direct or
circumstantial (e.g., "links"), may well be sufficient to establish that element beyond a

reasonable doubt. Id. at 162.

In the context of a charge of possession of a controlled substance, the following list of

nonexclusive links, either singly or in combination, have been found to be sufficient to uphold a

conviction: (1) the contraband was in plain view or recovered from an enclosed space; (2) the

accused either owned or had the right to possess the place where the drugs were found; (3) the

accused was found with a large amount of cash; (4) the narcotic was in close proximity to the

accused; (5) the narcotic was conveniently accessible to the accused; (6) a strong residual odor of

the narcotic was present; (7) the accused possessed other contraband when arrested; (8) other

contraband or drug paraphernalia was present; (9) the physical condition of the accused indicated

recent consumption of narcotics when arrested; (10) the accused's conduct indicated a

consciousness of guilt; (11) the accused tried to flee; (12) the accused made furtive gestures; (13)
i, V
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

when arrested; (16) the quantity of the contraband; and (17). the accused was observed in a

suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Muckleroy v.

State, 206 S.W.3d 746, 748 n. 4 (Tex.App.-Texarkana 2006, pet: ref d). The legal issue with

respect to these links is whether there was evidence of circumstances, 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. It is the logical force of such links, rather than the

quantity, that is important in determining whether the evidence is legally sufficient to connect the

-6-
accused to the contraband. Evans, 202 S.W.3d at 162; Roberson v. State, 80 S.W.3d 730, 735

(Tex.App.-Houston [1st Dist.] 2002, pet. ref d).

Application ofLaw to Facts

Appellant argues that it is possible a confidential informant who lived in the same

apartment complex placed the drugs behind the gas filler door in order to frame Appellant.

Appellant presented this theory to the jury and the jury rejected it. The question on appeal is not

whether the drugs could have belonged to someone else or could have been planted in the vehicle

but whether there are sufficient affirmative links to connect Appellant to the cocaine found

hidden behind the gas filler door of the truck.

Several affirmative links are present in this case. At the time Officer Bradley stopped the

vehicle, Appellant was the driver and the only adult in the vehicle. As the driver, Appellant had

access to the engine compartment and the gas filler area where the cocaine and other drugs were

found. The pickup truck was not registered to Appellant but he exercised control over it before

leaving the apartment complex by placing something inside of the engine compartment. The

officers subsequently found a glass Mason jar containing marihuana inside of the engine

compartment. This evidence is significant because it permits an inference that Appellant hid the

marihuana inside of the engine compartment and it connects him to the cocaine and other drugs

hidden behind the gas filler door. The State presented testimony that both of these areas are

commonly used to hide drugs in vehicles. Finally, the evidence also showed that Appellant had

$1,860 in cash on his person. The cocaine alone had a street value of $500 to $1,500.

Appellant's possession of a large amount of cash, when combined with the drugs found hidden in

-7-
the vehicle, gives rise to an inference that he was involved in illegal narcotics activity and it

serves as an additional connection to the cocaine.

We conclude that the direct and circumstantial evidence, when taken in the light most

favorable to the verdict, showed that Appellant was not an innocent bystander and his proximity

to the cocaine was not merely fortuitous. The evidence affirmatively linked Appellant to the

cocaine hidden in the vehicle and it is legally sufficient to establish beyond a reasonable doubt

that he exercised actual care, custody, control or management of the cocaine. See Evans, 202

S.W.3d at 165-66; Menchaca, 901 S.W.2d at 652. Issue One is overruled.

MOTION TO SUPPRESS

In Point of Error Two, Appellant contends that the trial court erred by denying his motion

to suppress the cocaine found behind the gas filler door because it was seized in violation of the

Fourth Amendment without a warrant or exigent circumstances. The State responds that the

warrantless search was reasonable under the automobile exception or as an inventory search.

Standard ofReview

At a suppression hearing, the trial judge is the sole and exclusive trier of fact and may

choose to believe or disbelieve any or all of the evidence presented before it. Tillman v. State,

354 S.W.3d 425, 435 (Tex.Crim.App. 2011); Maxwell v. State, 73 S.W.3d 278, 281

(Tex.Crim.App. 2002). We review a ruling on a motion to suppress using a bifurcated standard

of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010); Guzman v. State, 955

S.W.2d 85, 87-91 (Tex.Crim.App. 1997). Under this standard, the trial court's findings of

historical fact must be afforded almost total deference provided they are supported by the record.

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Valtierra, 310 S.W.3d at 447; Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). We

also defer to the court's determination of mixed questions of law and fact that turn on an

assessment of a witness's credibility or demeanor. Valtierra, 310 S.W.3d at 447; Amador, 221

S.W.3d at 673. We will review de novo the trial court's determination of legal questions and its

application of the law to facts that do not turn upon a determination of witness credibility and

demeanor. See Valtierra, 310 S.W.3d at 447; Amador, 221 S.W.3d at 673.

Automobile Exception

Whether a search is reasonable is a question of law that we review de novo. Kothe v.

State, 152 S.W.3d 54, 62 (Tex.Crim.App. 2004). Reasonableness is measured by examining the

totality of the circumstances. Id. at 63. A search conducted without a warrant is per se

unreasonable subject to a few specifically defined and well-delineated exceptions. McGee v.

State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). One of those exceptions is the "automobile

exception." Neal v. State, 256 S.W.3d 264, 282 (Tex.Crim.App. 2008). Under this exception,

officers may conduct a warrantless search of a vehicle if it is readily mobile and there is probable

cause to believe that it contains contraband. Keehn v. State, 279 S.W.3d 330, 335

(Tex.Crim.App. 2009). If the automobile exception applies, then the police may search "every

part of the vehicle and its contents that may conceal the object of the search." Neal, 256 S.W.3d

at 282, quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Probable cause to search exists when there is a fair probability of finding inculpatory

evidence at the location being searched. Neal, 256 S.W.3d at 282, citing Wiede v. State, 214

S.W.3d 17, 24 (Tex.Crim.App. 2007). When evaluating probable cause in a case involving

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information obtained from informants, we apply the "totality of the circumstances" test set out in

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Dixon v. State, 206

S.W.3d 613, 616 (Tex.Crim.App. 2006). Under the Gates test, an informant's veracity,

reliability, and basis of knowledge are highly relevant in determining the value of an informant's

report, but they are not independent requirements. See Dixon, 206 S.W.3d at 616. They are

instead relevant considerations in the totality-of-the-circurhstances analysis that traditionally has

guided probable-cause determinations. Id. Thus, a deficiency in one element may be

compensated for by a strong showing as to the other. Id.

In a hearing held outside of the jury's presence, Detective Leonard testified that a

confidential informant, "Brandy," had provided him with information four or five times prior to

March 8, 2011. He found her to be reliable and credible and when she told him that "something

is going to be there, it's there." On March 8, 2011, Brandy told Leonard that Appellant had

cocaine in the gas-filler area of his pickup truck, he was at the Wellington Park Apartments in

Lewisville, and he would be leaving those apartments. She provided Leonard with a description

of Appellant and the pickup truck. Leonard conveyed all of this information to Officer Newkirk

in Lewisville. Newkirk did a search on Appellant's driver's license and learned that it was

suspended and he had outstanding warrants. Within minutes after obtaining this information,

Officers Newkirk and Lee conducted surveillance on the apartment and the pickup truck and they

watched Appellant place something in the engine compartment before driving out of the

apartment complex. The officers were able to confirm that the confidential informant's

descriptions of Appellant and the pickup truck were accurate and he left the apartment as she had

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stated he would. Officers Newkirk and Lee conveyed all of the foregoing information to Officer

Showalter who stopped Appellant for driving while his license was suspended. After Showalter

stopped the vehicle, a woman approached him and asked if she could take the vehicle, but

Showalter refused.

The evidence showed that Brandy had been reliable in the past. She gave detailed and

verifiable information about Appellant, his truck, his location, the location of drugs in the truck,

and that he would be leaving the apartment soon. See Dixon, 206 S.W.3d at 616. Officers

Newkirk and Lee verified these details except for the actual presence of the cocaine behind the

gas filler door. Thus, the evidence established that Brandy was credible and reliable. See Dixon,

206 S.W.3d at 616-17. Brandy's knowledge that Appellant would be leaving the apartment

gives rises to an inference that she had obtained the information recently. See Dixon, 206

S.W.3d at 617. We find under the totality of the circumstances that Officers Newkirk, Lee, and

Showalter had probable cause to believe that Appellant had cocaine hidden in his vehicle. See

id. Further, it is undisputed that Appellant's pickup truck was readily mobile. Because the State

established that the automobile exception applies in this case, the trial court did not err by

denying the motion to suppress. Issue Two is overruled.

CHARGE ERROR

In Point of Error Three, Appellant argues that the trial court erred by failing to instruct

the jury that evidence seized in an illegal inventory search should be disregarded. Officer

Showalter testified before the jury that he assisted with the inventory search after Appellant was

arrested. In a hearing conducted outside of the jury's presence, Showalter testified that it is

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Lewisville Police Department's policy to impound vehicles when the operator is arrested and

they inventory impounded vehicles. A defendant's right to the submission of jury instructions

under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible. Madden v. State,

242 S.W.3d 504, 509-10 (Tex.Crim.App. 2007). To be entitled to a jury instruction under

Article 38.23(a), a defendant must show that: (1) the evidence heard by the jury raised an issue

of fact; (2) the evidence on that fact was affirmatively contested; and (3) the contested factual

issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at

510. In the absence of a genuine dispute about a material fact, the legality of the conduct is

determined by the trial judge as a question of law. Id.

We have reviewed the entire record of the trial and have not found any disputed issue of

material fact related to the inventory search. The jury did not hear any evidence raising an issue

of fact related to the inventory search and Appellant did not affirmatively contest Showalter's

testimony before the jury that he conducted an inventory search. Further, as set forth in our

discussion of Issue Two, the warrantless search of the vehicle was not unreasonable because the

automobile exception to the warrant requirement applies in this case. Thus, even if there was a

disputed fact related to the inventory search, it is not material because other undisputed facts are

sufficient to support the lawfulness of the warrantless search. See Madden, 242 S.W.3d at 510

("And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged

conduct, then the disputed fact issue is not submitted to the jury because it is not material to the

ultimate admissibility of the evidence."). For these reasons, Appellant was not entitled to

2 Tex.CodeCrim.Proc.Ann. art. 38.23(a)(West 2005).
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submission of an Article 38.23(a) instruction in the charge. Issue Three is overruled.

EXCLUSION OF EVIDENCE

In Point of Error Four, Appellant complains the trial court abused its discretion by

excluding the testimony of Holly Naylor who would have testified that Shonda Riley confessed

ownership and possession of the drugs during a telephone call. The defense sought to introduce

the testimony of Holly Naylor, an attorney who had worked for Appellant's trial counsel,

Dominick Marsala, from April 2012 to August 2012. The trial court conducted a hearing outside

of the jury's present to determine whether to admit Naylor's testimony. Marsala, in the presence

of Appellant and Naylor, called Shonda Riley and talked to her about what happened on March

18, 2011. Naylor testified that Riley stated she borrowed Appellant's truck to take her child or

children to school and she had put plastic baggies containing hydrocodone, Xanax, and cocaine

under the gas cap of the truck. She returned the truck to Appellant later and did not tell him

about the drugs hidden under the gas cap. Riley did not mention anything about marihuana or

hydrochloride.

At the same hearing, the State introduced the testimony of Derek Adame, who is Riley's

attorney on an unrelated case. Adame was aware of the Riley's telephone conversation with

Marsala and he testified that Riley disputed the accuracy of the affidavits of Naylor and

Marsala.3 According to Adame, Riley did not claim responsibility for the drugs found in

Appellant's truck. Further, Riley did not want to testify at Appellant's trial and she would

exercise her Fifth Amendment right to remain silent. The trial court excluded Naylor's

3 The clerk's record contains the affidavits of Naylor and Marsala filed on May 17, 2012. The affidavits describe
Marsala's conversation with Riley.
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testimony about the conversation because it is hearsay and the court further found the testimony

to be untrustworthy.

Standard ofReview

We review a trial court's decision to admit or exclude evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). An abuse of discretion occurs if

the court's decision is "so clearly wrong as to lie outside the zone within which reasonable

people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008). An

evidentiary ruling must be upheld if it is reasonably supported by the record and correct on any

theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App.

2008).

Right to Compel Attendance ofFavorable Witnesses

A defendant has a right under the Sixth Amendment to compel the attendance of

witnesses in his favor. U.S.CONST. Amend. VI; Williams v. State, 273 S.W.3d 200, 232

(Tex.Crim.App. 2008). In some circumstances, the exclusion of a defendant's evidence can

amount to a violation of his right to compel the attendance of witnesses in his favor. Williams,

273 S.W.3d at 232; Ray v. State, 178 S.W.3d 833, 835 (Tex.Crim.App. 2005). There are two

circumstances in which the improper exclusion of evidence may establish a constitutional

violation: (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant

from offering relevant evidence that is vital to his defense; or (2) when a trial court erroneously

excludes relevant evidence that is a vital portion of the case and the exclusion effectively

precludes the defendant from presenting a defense. Ray, 178 S.W.3d at 835; Potier v. State, 68

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S.W.3d 657, 659-62 (Tex.Crim.App. 2002). In the first scenario, the constitutional infirmity is

the arbitrary rule of evidence itself. Williams, 273 S.W.3d at 232. In the second scenario, the

rule itself is appropriate, but the trial court erroneously applies the rule to exclude admissible

evidence to such an extent the defendant is prevented from presenting his defensive theory. Id.

Appellant does not contend that the trial court erred by determining that Naylor's testimony

about Riley's statements is hearsay. He instead argues that the hearsay rule operated in such a

manner that it prevented him from presenting a favorable witness. Thus, Appellant's argument

falls under the first scenario.

Appellant relies on the Waco Court of Appeals' decision in Alonzo v. State, 67 S.W.3d

346 (Tex.App.—Waco 2001, pet. dism'd). There, the court of appeals analyzed Washington v.

Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), Webb v. Texas, 409 U.S. 95, 93

S.Ct. 351, 34 L.Ed.2d 330 (1972), Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35

L.Ed.2d 297 (1973), and Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)

and concluded that the right to present a defensive theory is constitutional and rules of evidence,

particularly hearsay rules, "must be flexible and must sometimes bend to the due-process rights

of the defendant." Alonzo, 67 S.W.3d at 359. Further, the court identified five factors that a

court should consider when determining whether otherwise inadmissible hearsay should be

admitted because of these due process concerns: (1) the inherent trustworthiness of the hearsay;

(2) any corroborating evidence that the hearsay is truthful; (3) the hearsay's importance to the

determination of guilt-innocence; (4) the State's opportunity to examine the declarant of the

hearsay; and (5) the State's demonstration, if any, of the unreliability of the hearsay. Id. at 359-

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60. In Alonzo, the trial court excluded a videotaped statement of a person who claimed to have

been an eyewitness to the killing and said that someone other than the defendant had committed

the crime. The court of appeals concluded that the trial court erred by excluding the evidence

because it violated the defendant's right to present his "alternative perpetrator" defense. Id. at

361-62.

Naylor's testimony about Riley's statements was important to the determination of guilt-

innocence, but there is also evidence that the hearsay evidence is untrustworthy and unreliable.

The trial court noted that Naylor's testimony about Riley's hearsay statements was not

trustworthy because Naylor was an interested witness in the sense that she was Marsala's former

employee and she had been a member of the defense team. Further, Riley had discredited

Naylor's affidavit and said she had not made the statements attributed to her. The record also

reflects that the State did not have an opportunity to cross-examine Riley because she would not

testify at trial and would exercise her Fifth Amendment right to remain silent. Finally, there is

no evidence corroborating Riley's statements. Under these circumstances, we conclude that the

trial court did not abuse its discretion by excluding the hearsay evidence. Issue Four is

overruled. Having overruled each issue presented on appeal, we affirm the judgment of the trial

court.

June 17, 2015
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge)
(Barajas, C.J., Senior Judge, sitting by assignment)

(Do Not Publish)

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