ACCEPTED 12-15-00073-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/19/2015 11:42:44 PM CATHY LUSK CLERK
NUMBER 12-15-00073-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 8/19/2015 11:42:44 PM CATHY S. LUSK Clerk YAGO SANTAIN FOUNTAIN, Appellant v. THE STATE OF TEXAS, Appellee
From the 114th District Court of Smith County, Texas Trial Cause Number 114-0896-14
STATE’S BRIEF
ORAL ARGUMENT REQUESTED
D. MATT BINGHAM Criminal District Attorney Smith County, Texas
AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590-1720 Fax: (903) 590-1719 Email: arediker@smith-county.com TABLE OF CONTENTS
Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUE ONE: The combined circumstantial evidence linking appellant with the contraband, coupled with the reasonable inferences therefrom, was sufficient to establish that appellant knowingly possessed the marihuana found under the hood of the vehicle in which he was a passenger. ................................................................... 5 Standard of Review ............................................................................................................. 5 Argument.............................................................................................................................. 6
Certificate of Compliance ................................................................................................ 18
Certificate of Service ........................................................................................................ 18
1 INDEX OF AUTHORITIES
Texas Cases Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011) ............................................ 16 Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995) .................................................... 7 Castellano v. State, 810 S.W.2d 800 (Tex. App.—Austin 1991, no pet.) ......................... 14 Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 6 Dixon v. State, 918 S.W.2d 678 (Tex. App.—Beaumont 1996, no pet.).......................... 10 Duff v. State, 546 S.W.2d 283 (Tex. Crim. App. 1977)...................................................... 16 Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ........................................... 6, 8, 16 Fields v. State, 932 S.W.2d 97 (Tex. App.—Tyler 1996, pet. ref’d) ........................... 10, 13 Gant v. State, 116 S.W.3d 124 (Tex. App.—Tyler 2003, pet. ref’d) ................................ 15 Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ................................................. 11 Hernandez v. State, 538 S.W.2d 127 (Tex. Crim. App. 1976) ....................................... 8, 16 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ....................................................... 6 Hurtado v. State, 881 S.W.2d 738 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)8, 14, 15 James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) ... 8, 14 Lassaint v. State, 79 S.W.3d 736 (Tex. App.—Corpus Christi 2002, no pet.) ................ 12 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .................................................... 5 Medina v. State, 242 S.W.3d 573 (Tex. App.—Waco 2007, no pet.)................................ 13 Muckleroy v. State, 206 S.W.3d 746 (Tex. App.—Texarkana 2006, pet. ref’d) .............. 12 Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ............................................. 6 Siroky v. State, 653 S.W.2d 476 (Tex. App.–Tyler 1983, pet. ref’d) ................................. 7 Whitworth v. State, 808 S.W.2d 566 (Tex. App.—Austin 1991, pet. ref’d) .................... 14 Willis v. State, 192 S.W.3d 585 (Tex. App.—Tyler 2006, pet. ref’d) ........................... 9, 12
Federal Cases Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................. 5
2 NUMBER 12-15-00073-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS
YAGO SANTAIN FOUNTAIN, Appellant v. THE STATE OF TEXAS, Appellee
From the 114th District Court of Smith County, Texas Trial Cause Number 114-0896-14
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, respectfully requesting that this Court overrule
appellant’s sole alleged issue and affirm the judgment of the trial court in the
above-captioned cause.
STATEMENT OF FACTS
Appellant has stated the essential nature of the proceedings and the
evidence presented at trial (Appellant's Br. 2-4). In the interest of judicial economy,
3 any other facts not mentioned therein that may be relevant to the disposition of
appellant's issue will be discussed in the State's argument in response.
SUMMARY OF ARGUMENT
The State showed substantially more factors linking appellant to the
contraband than mere presence, and the logical force of all the evidence, direct
and circumstantial, was legally sufficient to show that appellant knowingly
possessed marihuana. These factors included the following: (1) appellant’s
presence at the time of the search of the vehicle in which the marihuana was found,
(2) his conduct, including extreme nervousness, showed a consciousness of guilt,
(3) appellant proximity and access to the marihuana under the hood, (4) the odor
of marihuana was present inside the vehicle, (5) the stories of appellant and the
driver of the vehicle as to the purpose of their trip to Dallas from Louisiana were
inconsistent and implausible, (6) items to mask the scent of marihuana from
detection by law enforcement were found in the vehicle, (7) the amount of
contraband was significant, (8) the marihuana was located in an enclosed space,
4 (9) appellant was traveling on a major drug corridor, and (10) appellant did not act
surprised or shocked when the marihuana was discovered.
I. ISSUE ONE: The combined circumstantial evidence linking appellant with the contraband, coupled with the reasonable inferences therefrom, was sufficient to establish that appellant knowingly possessed the marihuana found under the hood of the vehicle in which he was a passenger.
STANDARD OF REVIEW
Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443
U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." When conducting a legal sufficiency review, a
reviewing court must ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, and not whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The same standard applies
equally to circumstantial and direct evidence. Id. When examining the evidence
5 for legal sufficiency, a reviewing court’s role is not to become a “thirteenth juror”,
and it may not “re-evaluate the weight and credibility of the record evidence” and
thereby substitute its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999). Thus, “[t]he reviewing court must give deference to
the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443
U.S. at 318-19) (internal quotation marks omitted).
ARGUMENT
In a single issue, appellant claims the State’s evidence showing that she
possessed the marihuana at issue was legally insufficient (Appellant’s Br. 4-23).
“[I]n a possession of a controlled substance prosecution, ‘the State must prove that:
(1) the accused exercised control, management, or care over the substance; and (2)
the accused knew the matter possessed was contraband.’” Evans v. State, 202 S.W.3d
158, 161 (Tex. Crim. App. 2006) (quoting Poindexter v. State, 153 S.W.3d 402, 405 (Tex.
Crim. App. 2005)). “Possession need not be exclusive, however, and a showing of
6 joint possession with another is sufficient.” Siroky v. State, 653 S.W.2d 476, 479 (Tex.
App.–Tyler 1983, pet. ref’d). Direct or circumstantial evidence may be used to
prove knowing possession of a controlled substance. Brown v. State, 911 S.W.2d 744,
747 (Tex. Crim. App. 1995). “Regardless of whether the evidence is direct or
circumstantial, it must establish that the defendant's connection with the drug
was more than fortuitous.” Evans, 202 S.W.3d at 161. As the Court of Criminal
Appeals explained in Evans:
Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. However, 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. (footnote omitted).
Id. at 162. The Court also provided a nonexclusive list of possible links that Texas
courts had recognized as sufficient, “either singly or in combination, to establish
a person’s possession of contraband”:
(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 the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant
7 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.
Id. at 162 n.12. “However, the absence of the above facts and circumstances is not
evidence of appellant's innocence to be weighed against evidence tending to
connect appellant to the marihuana.” Hernandez v. State, 538 S.W.2d 127, 131 (Tex.
Crim. App. 1976). See also James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston
[1st Dist.] 2008, pet. ref’d) (“The absence of various affirmative links does not
constitute evidence of innocence to be weighed against the affirmative links
present”); Hurtado v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994,
pet. ref’d) (“Because our review is no longer based on whether the State disproves
reasonable alternatives to a defendant's guilt, we need not consider affirmative
link factors that are absent from the evidence.”). “These are simply some factors
which may circumstantially establish the legal sufficiency of the evidence to prove
8 a knowing ‘possession.’ They are not a litmus test.” Evans, 202 S.W.3d at 162 n.12.
“It is the logical force of the circumstantial evidence, not the number of links, that
supports a jury's verdict.” Id. at 166.
Here, the evidence linking appellant to the marihuana consisted of
substantially more than appellant’s mere presence as a passenger in the vehicle
where the drugs were found (Appellant’s Br. 4). The arresting officer, Trooper
Martin, testified that Interstate 20 is a known drug corridor and that Dallas is a
“drug hub, kind of a station where, you know, believe it or not, cartels and
organized gangs will get that dope to Dallas, and then they’ll distribute it, you know,
up north or east or wherever they can to supply other organized crime affiliates.”
(XI Rep.’s R. at 34). See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.—Tyler 2006, pet.
ref’d) (finding link where defendant stopped on Interstate 20, “a heavily traveled
narcotics corridor from Dallas to the east coast”). In the early morning hours of
17 September 2013, Trooper Martin had initiated a traffic stop on a Chevrolet
Suburban for a defective license plate lamp (XI Rep.’s R. at 42, 44). The vehicle was
traveling eastbound on I-20, away from Dallas and toward Louisiana (Id. at 43). As
9 Trooper Martin approached the vehicle, he noticed that appellant, sitting in the
passenger seat, had already unbuckled his seatbelt and was holding it in his hand
while giving the trooper a “deer in the headlight” look (Id. at 45). Trooper Martin
testified that he found this very odd and asked appellant if he planned on running
(Id. at 46). After exiting the vehicle, the driver, Lapatrick Mitchell, told Martin that
the Suburban belonged to a friend (Id. at 49). Martin stated that traveling long
distances in a third party’s vehicle is a suspicious circumstance not uncommon
among drug traffickers (Id. at 49-50). See Dixon v. State, 918 S.W.2d 678, 681 (Tex.
App.—Beaumont 1996, no pet.) (that the vehicle in which the drugs were found was
borrowed tended to link defendant to contraband).
Mitchell also told Trooper Martin that he was traveling to Dallas, about three
hours from Louisiana and six hours roundtrip, “to get a tire fixed” and to take
appellant’s aunt back to Dallas (XI Rep.’s R. at 50-51). Appellant, however, stated
that they were travelling to Dallas to drop off Mitchell’s aunt and to buy a new tire
because it was cheaper in Texas (Id. at 57-58; State’s Ex. 1). See Willis, 192 S.W.3d at
594 (finding link where defendant and his passenger “gave conflicting stories
10 about the underlying reasons for their trip.”); Fields v. State, 932 S.W.2d 97, 104 (Tex.
App.—Tyler 1996, pet. ref’d) (finding link where appellant and driver “gave
conflicting stories as to their purpose for coming to Texas and activities while in
Texas”). Trooper Martin did not think it plausible that appellant and Mitchell
would take a six-hour drive in a Suburban to “save a couple bucks on a tire.” (XI
Rep.’s R. at 145). See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)
(“Attempts to conceal incriminating evidence, inconsistent statements, and
implausible explanations to the police are probative of wrongful conduct and are
also circumstances of guilt.”). Further, appellant could not tell the trooper when
they had left Louisiana to drive to Dallas (XI Rep.’s R. at 58-59), and he had to be
prompted by Martin until settling on “sunup” (State’s Ex 1). Mitchell had stated
that they left Louisiana “about eleven.” (XI Rep.’s R. at 122). Appellant appeared
very nervous while Trooper Martin questioned him—much more nervous than a
passenger would normally be during a routine traffic stop (Id. at 53-55). Appellant
was breathing rapidly, and his hands were visibly trembling (Id. at 53, 56). See Willis,
192 S.W.3d at 594 (finding link where defendant “appeared extremely nervous
11 because his hands were trembling and the artery on his neck was throbbing.”);
Lassaint v. State, 79 S.W.3d 736, 744 (Tex. App.—Corpus Christi 2002, no pet.)
(“Excessive nervous behavior and unsettled demeanor may be examples of
consciousness of guilt.”). Appellant was so nervous, in fact, that Martin asked him
whether he had any warrants out for his arrest, but appellant stated that he did
not (XI Rep.’s R. at 56-57).
After Mitchell gave him consent to search the vehicle, Trooper Martin located
“a brand new roll of cellophane plastic wrap and two cans of, like, axle grease” in
one of the rear panels where the jack was kept (Id. at 63). He testified, “[a] lot of
times when people transport illegal narcotics or drugs, they use cellophane to
wrap it, and they use axle grease to try to mask the smell and odor not only for us
but also for the canine; if a canine is called, to try to throw the canine off.” (Id.).
See Muckleroy v. State, 206 S.W.3d 746, 749 (Tex. App.—Texarkana 2006, pet. ref’d)
(finding link where “numerous pieces of aluminum foil, commonly used to wrap
narcotics, were inside the vehicle”); Willis, 192 S.W.3d at 594 (finding link where
“[a] strong scent of air freshener emanated from the car, which Hellen stated is an
12 indicator of a common practice employed by drug traffickers to cut down the smell
of the drugs”). Trooper Martin continued: “And when I got to the front driver’s
side, I started to look underneath the dash, and I got a big hint of raw marijuana
smell – odor.” (XI Rep.’s R. at 64). He stated that raw marihuana has “a more
intense odor” than burnt marihuana (Id.), and he was “100 percent sure” that he
could smell the odor from the dashboard inside the vehicle (Id. at 150). After
releasing the hood latch from inside the vehicle, Trooper Martin discovered three
large bricks of marihuana, totaling 8.59 pounds (Id. at 176), sitting right beneath
the hood on top of the engine compartment (Id. at 66-67; State’s Ex. 1-3). See Fields,
932 S.W.2d at 104 (finding link between passenger and contraband where, “the
drugs were found concealed beneath the closed hood of the Lincoln, and the hood
latch was controlled from the interior of the car”); Medina v. State, 242 S.W.3d 573,
576-77 (Tex. App.—Waco 2007, no pet.) (holding contraband found under hood of
vehicle was in close proximity to defendant, who was asleep in back seat). On the
video, appellant and Mitchell can be seen exchanging several glances as Trooper
Martin releases the hood latch and walks to the front of the vehicle to look
13 underneath the hood (State’s Ex. 1). It was not unreasonable for the jury to
conclude from this behavior that both men knew exactly what Martin was about
discover under the hood. See Hurtado, 881 S.W.2d at 743 (finding link based on
“appellant's nervousness and unusual conduct in the manner of his frequent
glances toward the particular place where the contraband was found”); Castellano
v. State, 810 S.W.2d 800, 807 (Tex. App.—Austin 1991, no pet.) (“Knowledge can be
inferred from the conduct of and remarks by the accused and from circumstances
surrounding the acts engaged in by the accused.”). Immediately after finding the
marihuana, Trooper Martin told both appellant and Mitchell to get on the ground,
but they did not immediately respond to his command (XI Rep.’s R. at 79). See
Whitworth v. State, 808 S.W.2d 566, 570 (Tex. App.—Austin 1991, pet. ref’d)
(defendant’s reaction to being arrested may serve as link to contraband). Martin
then performed a felony takedown of both men, and he can be seen on the video
repeatedly telling them to get on the ground (State’s Ex. 1). Mitchell actually took
a step to the side rather than dropping down, and the trooper thought that they
might be getting ready to run or circle around him (XI Rep.’s R. at 79). See James,
14 264 S.W.3d at 220 (finding link where defendant was “nervously looking around in
a manner that made the officers believe he was going to attempt to flee.”). Neither
appellant nor Mitchell appeared surprised when Trooper Martin discovered the
marihuana, and appellant nonchalantly denied ownership of the drugs while
Mitchell remained silent (XI Rep.’s R. at 92, 152, 166-67). See Castellano, 810 S.W.2d
at 807 (inference of knowledge can be made from defendant’s lack of concern or
surprise when contraband discovered); Fields, 932 S.W.2d at 104 (finding link
between contraband and passenger where he “exhibited unnatural equanimity
and lack of concern throughout the temporary detention and the subsequent
investigation”).
Finally, Trooper Martin described the contraband as a large sum of marihuana,
quite a bit more than the typical user amount of two ounces (XI Rep.’s R. at 80, 87-
88, 144). See Gant v. State, 116 S.W.3d 124, 131-32 (Tex. App.—Tyler 2003, pet. ref’d)
(that there was a significant amount of contraband can serve as a factor showing
knowing possession and finding link where eight pounds of marihuana found in a
large bag). A pound of good quality marihuana could be sold for as much as $5,000,
15 and thus, the recovered bricks were worth “quite a bit of money.” (XI Rep.’s R. at
88-89). See Hurtado, 881 S.W.2d at 743 (finding link where “the large, extremely
valuable quantity of cocaine, a near-kilo ‘brick,’ an amount not likely be misplaced
or forgotten by an owner or person entrusted with its possession”); Blackman v.
State, 350 S.W.3d 588, 595-596 (Tex. Crim. App. 2011) (“A jury could reasonably find
that Gordon would not bring two innocent-bystander witnesses hundreds of miles
to a large-scale narcotics transaction.”). Therefore, examining the evidence in the
light most favorable to the jury's verdict and considering the logical force of the
factors discussed above linking appellant to the marihuana, a rational jury could
have reasonably determined beyond a reasonable doubt that appellant knowingly
possessed the marihuana under the hood. See Evans, 202 S.W.3d at 166. Cf. Duff v.
State, 546 S.W.2d 283, 288 (Tex. Crim. App. 1977) (“[T]he conflict between the
appellants' stories is a circumstance implying guilt and when it is coupled with the
strong odor of marihuana and the presence of what appeared to be marihuana
seeds on the floor of the vehicle, the evidence is sufficient to link appellant Pendley
with the marihuana.”). There was sufficient evidence linking appellant to the
16 marihuana to support the reasonable inference that he was knowingly in
possession of it, and his sole alleged issue should be overruled. See Hernandez, 538
S.W.2d at 131.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court
overrule appellant’s alleged issue and affirm the judgment of the 114th District
Court of Smith County, Texas, in the above-captioned cause.
Respectfully submitted,
D. MATT BINGHAM Criminal District Attorney Smith County, Texas
/s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 24046692 100 North Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590-1720 Fax: (903) 590-1719 (fax) arediker@smith-county.com
17 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney certifies that the word count for this document is 2,873 words as
calculated by Microsoft Word 2013.
/s/ Aaron Rediker Aaron Rediker
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 19th day of August 2015, the
State’s Brief in the above-numbered cause has been electronically filed, and a
legible copy of the State's Brief has been sent by email to A. Reeve Jackson,
attorney for appellant, at JLawAppeals@gmail.com.