Dent, Gary Deshaun

Opinion

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

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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