Opinion
NO. 14-18-00504-CR
09-24-2019
Manuel ESPINO-CRUZ, Appellant v. The STATE of Texas, Appellee
A jury convicted appellant Manuel Espino-Cruz of possession with intent to deliver a controlled substance weighing more than 400 grams, and the trial court sentenced him to twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant challenges the evidentiary sufficiency to support his conviction. Appellant first contends the evidence is legally insufficient to support a finding that he possessed the controlled substance, heroin, because no evidence affirmatively links him to the heroin. Appellant also argues that the evidence is legally insufficient to support the finding that appellant intended to deliver the heroin. Concluding the evidence is sufficient in both respects, we affirm the judgment.
Background
A confidential source provided information about a drug trafficking organization to Houston Police Department ("HPD") Narcotics Officer Ariel Ferrer. Ferrer arranged to purchase about 100 grams of heroin from the source's drug seller in a "small-scale" buy, which would serve as a precursor to a contemplated larger transaction. Ferrer conducted the small buy in his car with a man and a woman. Ferrer could not see the male's face clearly because he wore a surgical face mask and sat in the car's backseat. No one was arrested during this transaction because Ferrer planned to arrange a larger purchase. Ferrer asked the male about purchasing a larger quantity of heroin, and the individual told Ferrer to talk to his boss.
Ferrer is an experienced narcotics investigator and a member of the High Intensity Drug Trafficking Area (HIDTA) program, a multi-agency task force consisting of local, federal, and state entities working to dismantle drug trafficking organizations at the highest level.
Working through the confidential source, Ferrer arranged to purchase seven pounds of black tar heroin. The confidential source scheduled the transaction. On the day of the sale, the source maintained contact with Ferrer to provide ongoing details. The source contacted the sellers and provided Ferrer with information about the sellers' vehicle, a Ford Fusion. Ferrer was conducting surveillance nearby and saw the Ford Fusion. He also saw the Fusion's two occupants, one of whom was appellant. Ferrer saw the occupants talking with the confidential source. After the confidential source made contact with the sellers, the source left the scene in his car, and the sellers followed directly behind him in the Ford Fusion. Ferrer observed this activity from his location.
Ferrer provided a description of the sellers' vehicle to patrol units, which followed the Fusion for several blocks. When the driver of the Fusion failed to signal a lane change, HPD Officer Clifford Marshall stopped the Fusion. Marshall's partner approached the driver, while Marshall approached appellant, who occupied the front passenger seat. Appellant and the driver were detained, and Marshall's partner obtained the driver's consent to search the vehicle. When Marshall opened the trunk, he immediately smelled a strong odor of heroin. He found a large quantity of what he believed to be heroin in a brown bag inside the trunk of the car. Forensic analysis revealed the substance in the bag to be 3,482.63 grams of heroin.
3,482.63 grams is approximately 7.67 pounds.
A grand jury charged appellant with possession with intent to deliver over 400 grams of a controlled substance, namely heroin. At appellant's trial, Ferrer, Marshall, and a chemist testified. The trial court instructed the jury that it could convict appellant of the charged offense either as a principal actor or under the law of parties. After hearing the evidence and argument of counsel, the jury convicted appellant. The trial court sentenced him to twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division.
This appeal followed.
Issues
Appellant presents two issues for our review: (1) a challenge to the legal sufficiency of the evidence to support his conviction, and (2) a challenge to the trial court's denial of his motion for directed verdict. Both issues turn on the legal sufficiency of the evidence to support a conviction. See Gabriel v. State , 290 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ; Lewis v. State , 193 S.W.3d 137, 139-40 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We address appellant's two issues together.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the elements of the offense beyond a reasonable doubt. See Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); Jackson v. State , 530 S.W.3d 738, 741 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We consider all evidence in the trial record, whether it was admissible or inadmissible. Winfrey v. State , 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. Jackson , 530 S.W.3d at 741-42 (citing Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) ).
B. Governing Law
The State was required to prove appellant knowingly possessed with intent to deliver a controlled substance listed in penalty group I, which includes heroin. See Tex. Health & Safety Code § 481.112(a), (e) ; see also id. § 481.102(2) (identifying heroin as a member of penalty group I). To support a defendant's conviction as a principal actor, the State had to prove the defendant "knowingly possessed" the contraband, which requires proof that the defendant (1) exercised "actual care, custody, control, or management" over the substance and (2) knew the substance was contraband. See id. § 481.002(38) (definition of possession); Blackman v. State , 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) ; Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). "Deliver" means to transfer, actually or constructively, to another a controlled substance, including an offer to sell a controlled substance. Tex. Health & Safety Code § 481.002(8). The State need not show exclusive possession of the contraband to support conviction as a principal actor. Robinson v. State , 174 S.W.3d 320, 325 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Control over the contraband may be exercised by more than one person. Id.
To prove possession of a controlled substance as a party, the State must show (1) that another possessed the contraband and (2) the defendant, with the intent that the offense be committed, solicited, encouraged, directed, aided, or attempted to aid the other's possession. Id. at 324-25 ; see also Tex. Penal Code § 7.02(a)(2) ; Vela v. State , No. 14-16-00786-CR, 2018 WL 1004699, at *3-4 (Tex. App.—Houston [14th Dist.] Feb. 22, 2018, pet. ref'd) (mem. op., not designated for publication). To determine whether the defendant participated as a party, courts may look to events occurring before, during, and after the commission of the offense, and may rely on the defendant's actions that show an understanding or common design to commit the offense. Vela , 2018 WL 1004699, at *4 (citing Ransom v. State , 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) ). Mere presence or knowledge of an offense does not make one a party to possession; instead, the evidence must show that at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. Id.
Appellant argues that the evidence shows nothing more than his presence as a passenger in a car whose driver was involved in a drug transaction, and that no evidence exists proving that he intended to deliver the contraband. Therefore, his conviction as a principal actor is improper. Further, he argues his conviction is improper under the law of parties because there is no evidence that appellant solicited, encouraged, directed, aided, or attempted to aid the driver in possessing the heroin. The State responds that legally sufficient evidence exists to support appellant's conviction either as a principal actor or as a party.
C. Possession
We first examine whether the evidence is legally sufficient to support appellant's conviction as a principal actor. The State had to prove that appellant knowingly possessed the heroin, i.e., that he exercised actual care, custody, control, or management over the heroin and knew it was contraband.
Because appellant was not in exclusive possession of the place where the controlled substance was found, we cannot conclude that appellant had knowledge of and control over the contraband unless the State establishes an "affirmative link" between the accused and the contraband. See Poindexter v. State , 153 S.W.3d 402, 406 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) ; Robinson , 174 S.W.3d at 325. A link "generates a reasonable inference that the accused knew of the contraband's existence and exercised control over it." Olivarez v. State , 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused's connection with the substance was more than fortuitous. Evans , 202 S.W.3d at 161-62 ; Poindexter , 153 S.W.3d at 405-06.
The Court of Criminal Appeals has recognized the following non-exclusive factors as tending to establish affirmative links: (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 contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans , 202 S.W.3d at 162 n.12 ; Black v. State , 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Further, the presence of a large quantity of contraband may be a factor affirmatively linking an appellant to the contraband. See Olivarez , 171 S.W.3d at 291-92.
The number of factors is not as important as the logical force they collectively create to prove that a crime has been committed. Robinson , 174 S.W.3d at 326 ; Evans , 202 S.W.3d at 162. Moreover, the absence of various links does not constitute evidence of innocence to be weighed against the affirmative links present. See Wiley v. State , 388 S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ; see also Flores v. State , 440 S.W.3d 180, 189 (Tex. App.—Houston [14th Dist.] 2013), judgment vacated on other grounds , 427 S.W.3d 399 (Tex. Crim. App. 2014).
We examine each case on its own facts. Hurtado v. State , 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). A factor tending to establish sufficiency in one set of facts may be of little value in another set of facts.
The evidence tends to support several affirmative links between appellant and the heroin. Appellant was riding in the Fusion's front passenger seat when the car was stopped; therefore appellant was present when officers conducted the search and found the heroin. The drugs were found in the trunk of the car, which is an enclosed space. See Robinson , 174 S.W.3d at 327 ; Vela , 2018 WL 1004699, at *5. Although the heroin was not within appellant's physical reach while he was seated in the front passenger seat, the contraband was conveniently accessible within the vehicle. Officer Marshall testified that an officer popped the trunk latch from inside the car, from which a rational juror could infer that appellant would have been able to access the drugs without a key.
See Robinson , 174 S.W.3d at 326 ("conveniently accessible" means that the contraband must be within close vicinity of the accused and easily accessible while in the vehicle).
The large amount of heroin discovered in this case also links appellant to the offense. See, e.g. , Robinson , 174 S.W.3d at 328-29 ; Olivarez , 171 S.W.3d at 292 ; Roberson v. State , 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (explaining that amount is factor to be considered in determining if an affirmative link exists; persuasive weight of this factor increases as the amount of drugs increases); Villegas v. State , 871 S.W.2d 894, 896 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). Nearly four kilograms, or about seven and one-half pounds, of heroin is undeniably a large amount of heroin. Such a large amount strongly links appellant to the drugs. Cf. Robinson , 174 S.W.3d at 328-29 (two kilograms of cocaine found in trunk of vehicle strongly linked appellant to contraband); Vela , 2018 WL 1004699, at *6 (eight kilograms of cocaine affirmatively linked appellant to drugs; jury reasonably could have found that co-defendant would not bring an innocent bystander to a large-scale narcotics transaction).
Additionally, appellant was found in a suspicious place under suspicious circumstances. He accompanied the driver of the Ford Fusion to a pre-arranged location at an agreed-upon date to sell a pre-discussed amount of heroin—an amount of heroin that corresponds with the amount found in the trunk of the car. Ferrer testified that routinely more than one person is present during a large quantity drug sale for protection or back-up in case something goes wrong. Ferrer explained that, based on his experience, when two people arrive on a scene with four kilograms of drugs, both of them would have knowledge of "what was going on." See, e.g. , Blackman v. State , 350 S.W.3d 588, 595-96 (Tex. Crim. App. 2011) ("A jury could reasonably find that [co-defendant] would not bring two innocent-bystander witnesses hundreds of miles to a large-scale narcotics transaction. A jury could also reasonably rely on the opinion of an experienced narcotics investigator that appellant and the other two men acted like narcotics traffickers."); Vela , 2018 WL 1004699, at *6 (jury reasonably could have inferred from officer's testimony and defendant's actions that defendant served as security or lookout for drug sale).
The jury could infer that appellant's conduct indicated consciousness of guilt. Ferrer saw the occupants of the seller vehicle talking to the confidential source. Ferrer testified that he was communicating with the confidential source to instruct him on giving information to the drug sellers. According to Ferrer, "[e]very time they would be talking back and forth, he will call me and inform me that—what they had said. And that date, we were arranging to have them arrive at that location." And appellant was found with a phone in his hand when he was detained. From this evidence, a juror reasonably could infer that both appellant and the driver of the vehicle were communicating with the confidential source about the drug deal.
As appellant points out, evidence pertaining to several affirmative links were either not present or not discussed at trial. But the State is not required to establish all possible affirmative links or present evidence on each factor, and the absence of some factors is not evidence of innocence that must be weighed against the other factors present. See Flores , 440 S.W.3d at 189 ; Wiley , 388 S.W.3d at 814. Rather, it is the logical force of all the evidence, direct and circumstantial, that is dispositive. Evans , 202 S.W.3d at 162. We conclude that the logical force of all the evidence here supports the jury's finding that appellant possessed the heroin.
D. Intent to Deliver
Appellant also states in his brief that there is insufficient evidence that he intended to deliver the heroin. We construe this statement as a legal sufficiency challenge. We conclude the evidence is sufficient to show the intent-to-deliver element of the offense. Intent to deliver contraband may be proved by circumstantial evidence, including evidence that the accused possessed the contraband and the quantity of the drugs possessed. Moreno v. State , 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). An oral expression of intent by the defendant is not required. Id. at 326. Instead, intent can be inferred from the acts, words, and conduct of the defendant. Id. Factors that a reviewing court may consider in determining intent to deliver include (1) the nature of the location at which the defendant was arrested, (2) the quantity of the contraband in the defendant's possession, (3) the manner of the packaging of the contraband, (4) the presence of or lack of narcotics paraphernalia for either use or sale, (5) large amounts of cash, or (6) the defendant's status as a narcotics user. Id. at 325. As with the affirmative links analysis, the quantity of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Id. at 326. Finally, expert testimony by experienced law enforcement officers may be used to establish a defendant's intent to deliver. Id.
Because appellant offers no argument or authority in support of his claim, we would be justified in considering this portion of his challenge waived due to inadequate briefing. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Swearingen v. State , 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). We have nonetheless reviewed the record and will consider the argument.
As discussed supra , the amount of heroin found was significant and of a quantity inconsistent with personal use. See id. at 326 (49.4 grams of heroin consistent with distribution, rather than personal use). Further, the packaging inside the brown bag of heroin included Ziploc bags, and there was no personal-use drug paraphernalia present in the car. Finally, the heroin matched the amount that Ferrer had discussed purchasing.
Considering this evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt. See id. ; see also Jordan v. State , 139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.) (evidence showed intent to deliver where (1) accused was arrested in a high-crime area where "drug houses" were located, (2) accused did not possess any drug paraphernalia indicating an intent to use, (3) two officers testified that packaging of the drugs, in capsule form and in individual bags, indicated an intent to sell, and (4) an experienced narcotics officer testified that the amount of narcotics in accused's possession indicated an intent to sell); Misner v. State , No. 04-03-00323-CR, 2004 WL 730838, at *3 (Tex. App.—San Antonio Apr. 7, 2004, pet. ref'd) (mem. op., not designated for publication) (sufficient evidence showed intent to deliver where officer testified that amount of heroin (over four grams) was consistent with a person intending to package and sell, and the record showed that heroin was divided into two separate containers).
* * *
For the foregoing reasons, we conclude that the evidence is sufficient to support appellant's conviction for possession with intent to deliver. Accordingly, we overrule his challenges to the legal-sufficiency of the evidence.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
( Hassan, J., dissenting).
DISSENTING OPINION
Meagan Hassan, Justice, dissenting.
The instant case lacks (1) the necessary "affirmative links" between Appellant and the drugs, and (2) sufficiently just reasons to authorize our courts to convict Appellant for merely being within some unidentified proximity to contraband. I am therefore obliged to dissent from the majority's affirmation of the jury's verdict and would vacate Appellant's conviction.
The majority correctly identifies the applicable standard but misapplies it to the facts. Even when the facts are viewed in the light most favorable to the jury's verdict, there is no evidence tending to establish Appellant knowingly possessed the drugs (or even knew they were present), much less that he intended to sell them.
The Texas Court of Criminal Appeals has held a list of factors can support juries' findings that defendants knowingly possessed drugs when they were not in exclusive possession of the place where said drugs were found; the absence of any given factor (or even all remaining factors together), however, is not exculpatory. See James v. State , 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd) (citing Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976) ). To satisfy the requisite "affirmative links" test, the majority rests its conclusion on the following:
• Appellant was found in a suspicious place under suspicious circumstances;
• Appellant was riding in the Fusion's front passenger seat when officers conducted the search and found the heroin;
• The officer immediately smelled a strong odor of heroin (after opening the trunk);
• There was a large amount of heroin discovered;
• The drugs were found in the trunk of the car, which is an enclosed space and was accessible within the vehicle because the trunk latch could be accessed from inside the vehicle; and
• Appellant was found with a phone in his hand when he was detained.
These factors (both individually and collectively) (1) are incapable of establishing constitutionally sufficient affirmative links to justify a conviction, and (2) illustrate that despite clearly established jurisprudence concerning the right to remain free from unreasonable seizures and convictions, some prosecutors, courts, and juries remain prepared to seek, sustain, and assess criminal convictions based on mere proximity to contraband combined with other irrelevant "evidence" of guilt. See generally Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) ("Mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs."); see also Waldon v. State , 579 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1979).
First, the majority importantly cites Robinson v. State , 174 S.W.3d 320, 326 (Tex. App—Houston [1st Dist.] 2005, pet. ref'd) ("The term ‘conveniently accessible’ means that the contraband must be within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest that the accused had knowledge of the contraband and exercised control over it.") (emphasis added) (citing Rhyne v. State , 620 S.W.2d 599, 601 (Tex. Crim. App. [Panel Op.] 1981) and Deshong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981) ); see also Tate v. State , 463 S.W.3d 272, 280 n.5 (Tex. App.—Fort Worth 2015), rev'd on other grounds , 500 S.W.3d 410 (Tex. Crim. App. 2016) and Villarreal Lopez v. State , 267 S.W.3d 85, 93 n.24 (Tex. App.—Corpus Christi 2008, no pet.). In Robinson , (1) appellant was seated in the front passenger seat, (2) "[t]he cocaine was discovered in a factory compartment located in the back wall of the truck, which could be seen and accessed only by folding down the truck's back seat," (3) said compartment was "unlocked and unable to be closed completely because a shirt was stuffed in the opening," and (4) appellant had keys to the truck. Robinson , 174 S.W.3d at 326-27. The drugs therein were "conveniently accessible". The instant case is devoid of comparable facts and the drugs here were therefore not "conveniently accessible" under Texas law.
Second, the majority relies on testimony that the trunk could be opened from the inside, thereby enabling Appellant to "access the drugs without a key". This proposition as an "affirmative link" is uncited and effectively announces a new rule: without more, any passenger in Texas in a car carrying contraband in a trunk not protected by a lockable (and locked) internal trunk release is now sufficiently linked to said contraband to justify a criminal conviction. I cannot agree therewith.
Third, there is simply no evidence that could enable a jury to find Appellant ever touched, opened, or even looked at (1) any relevant item, (2) the trunk release, or (3) the trunk (much less inside the trunk or any object therein); therefore, there is zero evidence capable of sustaining Appellant's conviction. Moreover, there is no evidence Appellant had the ability to access the trunk (1) from the passenger seat, (2) from the inside of the vehicle, or (3) while the vehicle was moving; therefore, the drugs were not "easily accessible while in the vehicle. " See Robinson , 174 S.W.3d at 326 (emphasis added). These facts preclude a finding that the drugs were "conveniently accessible" and are insufficient to affirmatively link Appellant thereto.
Fourth, "[i]t has been many times held that the mere presence of an accused at the time and place of the commission of an offense, in the absence of proof of an agreement to commit it, does not render him guilty." De Grace v. State , 115 Tex. Crim. 558, 560, 27 S.W.2d 186 (1930) (emphasis added) (citing Branch's P. C. § 681; Golden v. State , 18 Tex. Ct. App. 639 (1885) ; Jackson v. State , 20 Tex. Ct. App. 192 (1886) ; Elliott v. State , 109 Tex. Crim. 270, 4 S.W.2d 61 (1928), and "authorities there cited."). "[P]resence 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." Black v. State , 411 S.W.3d 25, 28 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (emphasis added) (citing Evans , 202 S.W.3d at 161-62 ). "This ‘affirmative links rule’ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs." Poindexter v. State , 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (emphasis added), abrogated on other grounds by Robinson v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) (citing United States v. Phillips , 496 F.2d 1395, 1397-99 (5th Cir. 1974) ("Proof of mere proximity to contraband is not sufficient to establish actual constructive possession or the element of knowledge"; distinguishing the "non-explaining possessor" from the "incredible non-possessor", and concluding that evidence was sufficient because "[t]here are no facts in this case tending to establish exclusive possession and knowledge by [co-defendant]")).
Our sister courts have issued opinions clarifying the strength of purported affirmative links when there is no evidence a defendant (e.g. ,):
(1) owned the vehicle;
(2) was driving the vehicle;
(3) was asked for permission to search the vehicle (because he was not in control of it);
(4) possessed any of the trunk's contents;
(5) had fingerprints on any relevant item or on anything in the trunk;
(6) attempted to flee;
(7) made incriminating statements;
(8) made furtive gestures;
(9) was under the influence of any drugs;
(10) was found in proximity to any drugs inside the vehicle (excluding the trunk); and
(11) was found in proximity to any paraphernalia for using contraband inside the vehicle.
See generally Jenkins v. State , 76 S.W.3d 709, 716 (Tex. App.—Corpus Christi 2002, pet. ref'd) (summarizing Dixon v. State , 918 S.W.2d 678, 679 (Tex. App.—Beaumont 1996, no pet.) ). In Dixon , the court found the evidence was insufficient to sustain the conviction because there was no evidence the defendant had actual care, custody, control, or management over the contraband. 918 S.W.2d at 682 ; see also Moreno v. State , 821 S.W.2d 344, 352 (Tex. App.—Waco 1991, pet. ref'd) (insufficient links to connect passenger to cocaine found under the hood of the vehicle (despite the fact that he had cocaine in his wallet ) when he (1) was not connected with the ownership 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 influence of an illegal drug; and, (6) the odor of an illegal drug was not present in or around the vehicle); Humason v. State , 699 S.W.2d 922, 923 (Tex. App.—Houston [1st Dist.] 1985) (insufficient links when (1) driver was the truck's sole occupant and (2) the bag with drugs "was unzipped and close to appellant, thus suggesting that he had immediate access to the contents of the bag"), aff'd , 728 S.W.2d 363 (Tex. Crim. App. 1987) ; and Jenkins , 76 S.W.3d at 717-18 (insufficient links where appellant was effectively a non-owner and unintoxicated passenger who did not attempt to flee and made no furtive gestures, a "large" quantity of drugs were "secreted" in the trunk (not in plain view), the owner consented to a search, the trunk was locked, the odor of the contraband was "not detected until [the officer] opened the trunk," there was "no evidence of appellant being present when the trunk was opened prior to [the officer's] search, and no paraphernalia was "found on appellant or in his luggage").
Employing the legal sufficiency standard of review and viewing the "affirmative links" in the light most favorable to the prosecution, the majority erroneously holds the evidence is sufficient to sustain a conviction for possession of contraband. When the evidence here is viewed in that same light, it is plainly insufficient to prove Appellant's intent to distribute same and does not sufficiently link the contraband to Appellant in such a manner and to such an extent that a reasonable inference may arise that he (1) knew of the contraband's existence or (2) exercised any control over it. Additionally, the narcotics officer testified he did not examine or download any data from Appellant's phone and could not thereby link him (even circumstantially) to the confidential informant or the drugs; here, the absence of such evidence plainly demonstrates its unavailability, unreliability, or irrelevance. Finally, there was conflicting testimony at trial between the two testifying officers (the narcotics officer and the traffic patrolman) about the type of car carrying the contraband. That testimony was never reconciled and cannot sustain this conviction under these circumstances.
Simply put, the evidence of Appellant's guilt is (1) his mere presence in a car with an unlockable trunk containing contraband and (2) a cell phone that was never connected to the confidential informant. See Jenkins , 76 S.W.3d at 719 n.13 ("To accept the State's argument would permit a single factor indicating guilt to trump any number of other factors which did not tend to establish possession. But that is not our law; the determination of whether the evidence is sufficient to affirmatively link the accused to the contraband must be made not by applying some rigid algebraic formula, but on a case by case basis.") (citing Whitworth v. State , 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref'd) ).
As an intermediate appellate court, we are entrusted with the solemn obligation to vindicate guaranteed Due Process protections. See generally Griffin v. State , 614 S.W.2d 155 (Tex. Crim. App. [Panel Op.] 1981) ; see also Tex. Const. art. V § 6 (a). In this case, we have failed to do so because "the record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense." Garcia v. State , 367 S.W.3d 683, 687 (Tex. Crim. App. 2012) (quoting Jackson , 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009) ("After giving proper deference to the factfinder's role, we will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element.")). Regardless of whether Appellant committed a crime, we are duty-bound to ensure the State proves he did so beyond a reasonable doubt in a manner that comports with our shared, agreed-upon, and fundamental principles of justice. The State failed to do so and Appellant's conviction should therefore be vacated.