Dent, Gary Deshaun

• Court: Court of Appeals of Texas
• Decided: April 15, 2015
• Docket: PD-0411-15
• Status: Published

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

2 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

3 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

4 NO. _____________ PD

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

5 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.

6 (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 7 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

8 (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

9 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.

11 APPENDIX

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