PD-0411-15
PD-0411-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/13/2015 4:16:07 PM
Accepted 4/15/2015 4:58:11 PM
ABEL ACOSTA
NO. _____________ PD CLERK
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
GARY DESHAUN DENT
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
_________________________________________________________
Petition in Cause No. CR30123 from the
TH
75 District Court of Liberty County, Texas and
the Court of Appeals for the
14TH District of Texas
_________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
April 15, 2015 SBOT # 24072501
ATTORNEY FOR PETITIONER
IDENTITIES OF PARTIES AND COUNSEL
1. PETITIONER: GARY DESHAUN DENT
2. PRESIDING JUDGE: HON. MARK MOREFIELD
75th District Court
Liberty County Courthouse
1923 Sam Houston Street, 3rd Floor
Liberty, Texas 77575
(936) 336-4678
3. PROSECUTORS: MR. JOE WARREN
MR. MATTHEW POSTON
Assistant District Attorney
Liberty Co. District Attorney’s Office
1923 Sam Houston Street, Rm. 112
Liberty, Texas 77575
(936) 336-4609
4. TRIAL COUNSEL: MR. CHAD ETHERIDGE
5111 Center St.
Houston, Texas 77007
(713) 869-1155
5. APPELLATE COUNSEL: MR. TOM ABBATE
440 Louisiana, Ste 200
Houston, Texas 77002
(713)-223-0404
6. APPELLEE COUNSEL: MR. LOGAN PICKETT
Liberty County District Attorney
MR. STEPHEN C. TAYLOR
First Assistant District Attorney
Liberty Co. District Attorney’s Office
1923 Sam Houston, Rm. 112
Liberty, Texas 77575
(936) 336-4609
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TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .........................................................2
INDEX OF AUTHORITIES......................................................................................4
STATEMENT REGARDING ORAL ARGUMENT ...............................................6
STATEMENT OF THE CASE ..................................................................................6
STATEMENT OF PROCEDURAL HISTORY........................................................7
QUESTION PRESENTED FOR REVIEW ..............................................................7
REASON FOR REVIEW ..........................................................................................7
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................11
CERTIFICATE OF COMPLIANCE .......................................................................11
APPENDIX ..............................................................................................................12
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INDEX OF AUTHORITIES
Cases
Bethancourt-Rosales v. State, 50 S.W.3d 650 (Tex. App.—Waco 2001) .................9
Brown v. State, 911 S.W.2d 744 (Tex.Crim.App.1995) ............................................8
Dent v. State, 14-14-00536-CR (Tex.App.-Houston [14th District] 2015) .............10
Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App. 1981) .......................................8
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ......................................8, 9
Fields v. State, 932 S.W.2d 97 (Tex. App.—Tyler 1996, pet. ref d) .........................9
Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App.2005) .....................................7
Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002). ...10
Robinson v. State, 174 S.W.3d 320 (Tex. App.— Houston [1st Dist] 2005) ............9
Statutes
TEX. Health & Safety Code Ann.§ 481.002 .............................................................7
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NO. _____________ PD
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
___________________________________________
GARY DESHAUN DENT
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
_________________________________________________________
Petition in Cause No. CR30123 from the
TH
75 District Court of Liberty County, Texas and
the Court of Appeals for the 14TH District
Supreme Judicial District of Texas
__________________________________________________________
PETITION OF DISCRETIONARY REIVEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS
Gary Dent, petitions the Court to review the judgment affirming
his conviction for possession of a controlled substance,
penalty group 3, with intent to deliver in Cause No. CR30123
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist to resolve whether the evidence was legally
sufficient to support the conviction obtained against the Petitioner in this case.
STATEMENT OF THE CASE
This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION
BY JURY finding GARY DESHAUN DENT (hereinafter, “Petitioner,”), GUILTY
of the charge of POSSESSION OF A CONTROLLED SUBSTANCE, PENALTY
GROUP 3, WITH INTENT TO DELIVER and sentencing him to 20 YEARS TDCJ
in Cause No. CR30195. (CLRK. REC. - 82). On April 16, 2013, a grand jury indicted
Appellant for the felony offense of knowingly possessing, with intent to deliver, a
controlled substance, namely, a material, compound, mixture, or preparation in an
amount of 400 grams or more, that contained not more than 300 milligrams of
dihydrocodeinone, or any of its salts, per 100 milliliters or not more than 15
milligrams per dosage unit, with one or more active nonnarcotic ingredients in
recognized therapeutic amounts. (CLRK. REC. – 2).
On May 14, 2014, a jury was seated and sworn for trial in the above described
cause number. (CLRK. REC. – 121). After hearing testimony from the State on that
same day, the jury was excused to deliberate. On May 15, 2014, the foreperson of
the jury indicated that they had become deadlocked, the defense moved for mistrial,
and the trial court granted that motion and relieved the jury from further service.
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(CLRK. REC. – 121).
On June 9, 2013, a new jury was seated and sworn. (CLRK. REC. – 122). The
following day, the jury returned a verdict of GUILTY and sentenced Appellant to
20 YEARS TDCJ after hearing evidence in both phases of trial. (CLRK. REC. –
122). Appellant filed a NOTICE OF APPEAL on June 25, 2014. (CLRK. REC. –
122).
STATEMENT OF PROCEDURAL HISTORY
The court of appeals rendered its decision affirming the petitioner’s
conviction on March 12, 2015. The Petitioner did not file a motion for rehearing,
and the decision of the court of appeals became its final ruling on March 27, 2015.
This petition was then filed with the clerk of the court of appeals within 30 days after
such final ruling.
QUESTION PRESENTED FOR REVIEW
Was the evidence in this case legally insufficient to convict Petitioner
of the charge of possession of a controlled substance with intent to
deliver.
REASON FOR REVIEW
To prove unlawful possession of a controlled substance, the State must
demonstrate that (1) the defendant exercised care, custody, control, or management
over the substance; and (2) the defendant knew the matter possessed was contraband.
See TEX. Health & Safety Code Ann.§ 481.002(38); Poindexter v. State, 153
S.W.3d 402, 405 (Tex.Crim.App.2005). The evidence, either direct or
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circumstantial, "must establish, to the requisite level of confidence, that the accused's
connection with the drug was more than just fortuitous." Id. at 405-06 (quoting
Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995)). This rule is designed
"to protect the innocent bystander from conviction based solely upon his fortuitous
proximity to someone else's drugs." Id. at 406. Thus, when the defendant "is not in
exclusive possession of the place where the substance is found, it cannot be
concluded that the accused had knowledge of and control over the contraband unless
there are additional independent facts and circumstances which affirmatively link
the accused to the contraband." Id. (quoting Deshong v. State, 625 S.W.2d 327, 329
(Tex.Crim.App. 1981)).
Texas courts have identified a non-exclusive list of possible "affirmative
links, "including (1) the defendant's presence when a search is conducted; (2)
whether the contraband was in plain view; (3) the defendant's proximity to and the
accessibility of the narcotic; (4) whether other contraband or drug paraphernalia was
present; (5) whether the defendant owned or had the right to possess the place where
the drugs were found; (6) whether the defendant was found with a large amount of
cash; and (7) whether the conduct of the defendant indicated a consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Additional link
factors include a defendant's "lack of surprise or concern" during an investigation
and the amount of contraband discovered. See Fields v. State, 932 S.W.2d 97, 104
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(Tex. App.—Tyler 1996, pet. ref d) (holding defendant's "unnatural equanimity and
lack of concern" is link factor); Bethancourt-Rosales v. State, 50 S.W.3d 650, 655-
56 (Tex. App.—Waco 2001, pet. refd) (same); Robinson v. State, 174 S.W.3d 320,
328-29 (Tex. App.— Houston [1st Dist] 2005, pet. ref d) (considering amount of
contraband).
The evidence in this case was legally insufficient to convict Appellant of the
charge of possession of a controlled substance with intent to deliver. Under the list
of possible "affirmative links, addressed by the Evans court, only two are present,
namely, "the defendant's presence when a search is conducted; and whether the
conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at
162 n.12. It cannot be disputed that Appellant was present in the vehicle when the
contraband was found, and, at least according to Trooper Cash, Appellant appeared
to be nervous during the course of their interaction. (RR. VI – 104-12).
However, the issue is not that these links are absent, but instead that evidence
exists that stands in contravention of the remaining links. Here, the contraband was
not in plain view, but was instead found within a hollow space behind the paneling
of the vehicle in a place not easily accessible to Appellant. Further, no other
contraband or drug paraphernalia was present and Trooper Cash testified that
Appellant did not possess a large sum of cash. Finally, Appellant did not own the
rental car, nor had he rented it himself, and therefore it is entirely possible that the
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narcotics belonged only to the co-defendant, or another person altogether. (RR. VI
– 107-119; VII – 38-63). Therefore, there exists evidence in contravention of
Appellant’s knowing possession.
Further, additional requisite issues were not affirmatively proved by the State.
First, no fingerprint analysis was ever conducted. (RR. VII – 63). While the bags
themselves may not have retained fingerprints, it is logical to assume the opposite
with regard to the paneling behind which the narcotics were found. Such an analysis
was well within the ability of the Department of Public Safety, and may have been
helpful to protect Appellant from the consequences of his co-defendant’s actions.
The Court of Appeals, however, relied on the amount of contraband found in
determining if an affirmative link existed. Roberson v. State, 80 S.W.3d 730, 740
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). According to the Court, “[t]he
power of this factor can reasonably be expected to increase as the amount of drugs
increases.” Dent v. State, 14-14-00536-CR (Tex.App.-Houston [14th District]
March 12, 2015). This reliance was misplaced, however, in light of the evidence
contradicting knowing possession outlined above.
PRAYER FOR RELIEF
ACCORDINGLY, this Court should GRANT this PETITION FOR
DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the
question of whether the evidence against the Petitioner was legally sufficient to
10
support his conviction.
Petitioner further prays for all relief to which he may be entitled.
Respectfully submitted,
/s/ Tom Abbate
TOM ABBATE
440 LOUISIANA ST, STE 200
HOUSTON, TX 77002
T: 713.223.0404
F: 800.501.3088
tom@tomabbatelaw.com
SBOT # 24072501
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PETITION FOR
DISCRETIONARY REVIEW was delivered to the Liberty County District
Attorney’s Office by CERTIFIED MAIL on APRIL 13, 2015
/s/ Tom Abbate
TOM ABBATE
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 1,715 words contained in this document.
/s/ Tom Abbate
TOM ABBATE
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APPENDIX
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Dent, Gary Deshaun
Combined Opinion