Aerron Dowdy v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00112-CR
___________________________
AERRON DOWDY, Appellant
V.
The State of Texas
On Appeal from County Criminal Court No. 4
Denton County, Texas
Trial Court No. CR-2017-02661-D
Before Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
Appellant Aerron Dowdy appeals from his conviction for possession of more
than two but less than four ounces of marijuana. Police officers arrested Appellant
because he was in a car in which marijuana was found. They stopped the car in which
he was a passenger because he was black and was wearing a white t-shirt and because
earlier that evening officers had unsuccessfully attempted to stop a different,
physically-dissimilar black male who was also wearing a white t-shirt, for suspected
possession of marijuana. At the conclusion of Appellant’s trial, the jury foreman
orally pronounced a verdict of guilty, but the trial court accepted the verdict form
unsigned.
In three issues, Appellant argues (1) that the jury did not render a verdict, (2)
that the evidence was insufficient to support a guilty finding, and (3) that the trial
court’s errors are either harmful or not subject to a harmless error review. Because
we sustain Appellant’s challenge to the sufficiency of the evidence to support the
verdict, we reverse the trial court’s judgment and render a judgment of acquittal.
BACKGROUND
At trial, the State called two police officers with the University of North Texas
police department: Corporal Pete Uranga and Officer Cory Lane.
Corporal Uranga testified that on February 7, 2017, he was working the night
shift. He started the evening working on bike patrol around 6:00 p.m. As he was
leaving the police station on his bike, Officer Lane was also leaving the station but
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was driving a police vehicle. The two stopped at the intersection of Kendolph Street
and Eagle Drive. A white Impala stopped at the intersection and turned south onto
Kendolph, and as the Impala passed the officers, they both noticed the smell of
marijuana coming from its window. Lane also noticed that the Impala’s registration
had expired.
Corporal Uranga made a u-turn to follow the Impala. The car turned into a
grocery store parking lot and pulled into a parking space. Corporal Uranga pulled up
behind the vehicle on his bicycle, turning on his bike’s flashing lights as he did so. As
he was about to dismount his bike, the Impala “took off.”
Corporal Uranga radioed that the Impala had left and began pursuing the
vehicle. Officer Lane had pulled into the parking lot to assist Corporal Uranga with
the stop, and he too pursued the Impala. When the Impala did not stop, Lane had to
“stand down” because department policy discourages pursuit of vehicles except when
the pursued person has committed a “known felony.” However, another officer
heard the call over the radio, saw the vehicle, and followed it until it stopped at the
Arbor Apartments. That officer vaguely described the driver as a black male wearing
a white t-shirt, and Corporal Uranga described him the same way. The officer stated
over the radio that he had the Impala’s two passengers but that the driver had fled the
scene.
Lane arrived at the scene and participated in the search of the Impala. He
found an envelope with a local address of 707 Bernard, Apartment 12, at a nearby
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apartment complex. Corporal Uranga biked to that address in case the driver
returned home after fleeing the stop.
Corporal Uranga saw three white males standing outside Apartment 12, and as
he approached them, one of the men stayed, another one (also wearing a white t-shirt)
ran off, and the third walked away. Another officer stopped the one who had run
away, and after questioning the men, the officers decided that the men were waiting to
buy marijuana from someone who lived in Apartment 12. Nevertheless, the officers
let the men go because they “had nothing on them.”1
Corporal Uranga decided to surveil Apartment 12 from a hilly area to see if the
occupant returned. He could see the doors of neighboring apartments, but a six-foot
brick wall, which separated the apartment buildings from the parking lot, blocked his
view of the door to Apartment 12. At some point, he saw a black male in a white t-
shirt coming from the area around the brick wall into the parking lot. Corporal
Uranga testified at trial that he did not see the man come out of Apartment 12 and did
not see where he came from but that he could at least say that the man did not come
from one of the neighboring apartments to Apartment 12 because he could see those
doors.
Corporal Uranga left his surveillance spot and went into the parking lot but in
doing so lost sight of the man. The apartment complex sits between two roads
See generally Rivas v. State, 787 S.W.2d 229, 233 (Tex. App.—Corpus Christi
1
1990, pet. ref’d) (discussing what the state must show to prove the offense of
attempted possession of a controlled substance).
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running east-west, and its parking lot has entrances on both its north and south side,
providing access to both roads. Corporal Uranga headed toward the street on the
north side of the parking lot to look for the man and, after failing to find him, went
back into the parking lot. As he did so, he saw a maroon Hyundai back out of a
parking space and drive toward him. He had not seen the car from where he had
been watching Apartment 12 although he had passed its parking space when he had
gone toward the street. A woman drove the car, and a black man in a white t-shirt
was in the front passenger seat. The man was later identified as Appellant. However,
Corporal Uranga could not say if Appellant was the man he had seen going into the
parking lot because he had seen that man only from a distance.
As the car drove past Corporal Uranga, he shined his flashlight on the car and
said, “[H]old up,” but the driver did not stop. Corporal Uranga did not detect any
odor of marijuana as the car passed him, but the car’s windows were up. Corporal
Uranga tried but was unable to activate his bike’s flashing lights. At trial, he testified
that he believed that the driver was evading him. However, he further stated that
because it was dark outside, he was not sure if the driver saw his uniform to know
that he was a police officer or if she was aware that he was attempting to detain her.
Corporal Uranga followed the car on his bike. Officer Lane was on his way to
the scene because Corporal Uranga had reported that he had seen a black male leaving
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Apartment 12.2 After Corporal Uranga reported that the Hyundai’s driver had turned
left at a stop sign without stopping, Officer Lane caught up to the car and turned on
his flashing lights to stop it. When the car stopped, officers ordered the driver and
passenger to put their hands out their respective windows. The car’s occupants
complied; Officer Lane did not see Appellant’s hands go back into the vehicle at any
point before being ordered out of the car.
Corporal Uranga caught up to the stopped car as the driver and passenger were
following the officers’ instructions to get out of the car. Corporal Uranga had not
seen the face of the Impala’s driver, but Officer Lane had seen enough of him to
know that the Impala’s driver had an Afro—Appellant was bald—and was noticeably
shorter than Appellant and thus to know that Appellant was not the Impala’s driver.
This was later confirmed after a search warrant was executed on Apartment 12. At
trial, Corporal Uranga admitted that Appellant and the Impala’s driver did not look
alike. But he asserted that the person he saw coming from around the wall near
Apartment 12—who he could not identify as Appellant—matched the Impala’s driver
“in certain ways”: both were black men who happened to be wearing white t-shirts.
Officers searched the Hyundai. Officer Lane testified that he noticed a
marijuana smell when he “peeked into the car” and also testified that he could smell it
2
Contrary to the State’s assertion in its brief, Corporal Uranga did not see
Appellant or anyone else actually leave Apartment 12. He acknowledged at trial that
he could not see the apartment’s door, that he could not say who he saw coming from
around the brick wall by the apartment, and that that it was not his testimony that it
was Appellant.
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when he approached the car after the occupants had been removed and both doors
opened. Officer Lane and another officer found marijuana in a yellow fanny pack in
the glove compartment, as well as a cigarillo wrapper containing marijuana. The
marijuana, which cumulatively weighed 2.8 ounces, was in “multiple little smaller bags
[of what] . . . looked to be closely equal amounts.” They also found $1,000 in cash
underneath the passenger seat.
Appellant was arrested and charged with marijuana possession. Officer Lane
testified that they did not arrest the Hyundai’s driver for possession because they were
already charging her with evasion and because—despite her owning and driving the
car that, according to the officers, smelled of marijuana—there was no evidence
linking her to the drugs. He did not ask her if she knew that the drugs were in the
glove compartment, and he testified that he had no evidence to prove that either she
or Appellant knew the drugs were there. Officer Lane testified that other than the
drugs’ location, he had no evidence that Appellant had control of the drugs and no
evidence that the cash in the car was related to drug activity.
Officer Lane stated that they linked Appellant to the drugs in the glove
compartment based on Corporal Uranga’s statement that he had seen Appellant near
Apartment 12—a location that, based on the search of the Impala, the officers linked
to drug activity. In fact, however, Corporal Uranga could not say whether Appellant
was the person he saw near Apartment 12.
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Appellant’s attorney demonstrated at trial that Officer Lane could not smell the
marijuana seized from the car if it was more than four inches away from him,
contradicting his statement that he could smell the marijuana from outside the car or
when he looked inside. On cross-examination, however, he testified that in the
courtroom, the bag the drugs were stored in was a heat-sealed bag, whereas when
found in the Hyundai, they were in closed zip-top bags, which were then placed in a
larger unsealed zip-top bag and then placed in the fanny pack that was in the closed
glove compartment.
After deliberating, the presiding juror read the verdict to the court, stating that
the jury found Appellant “guilty in the offense of possession of a usable quantity of
marijuana in the amount of 4 ounces or less but more than 2 ounces.” When asked
by the trial court, the presiding juror stated that the verdict was unanimous. Upon
Appellant’s request, the trial court polled the jury, and each juror stated that their
verdict was “guilty.” The trial court accepted the verdict. However, the presiding
juror left the verdict form blank.
SUFFICIENCY OF THE EVIDENCE
Because it is dispositive, we begin with Appellant’s second issue challenging the
sufficiency of the evidence to support his conviction.
I. Standard of Review
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
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2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The standard of review
is the same for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599
(Tex. Crim. App. 2016).
II. The Evidence Is Insufficient to Support Appellant’s Conviction.
A. The State Had to Link Appellant to the Drugs Through More
Than Mere Presence.
In order to establish possession of contraband, the State must prove that the
defendant (1) exercised care, custody, control, or management over the contraband,
and (2) knew that the matter possessed was contraband. See Tex. Health & Safety
Code Ann. §§ 481.002(38) (defining possession), 481.121 (providing offense for
knowing or intentional possession of a usable quantity of marijuana); Deshong v. State,
625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Harris v. State, 532 S.W.3d 524, 531
(Tex. App.—San Antonio 2017, no pet.).
A defendant’s mere presence in the same place where the contraband is being
used or possessed does not support a possession finding. McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985) (“‘[P]ossession’ means more than being
9
where the action is; it involves the exercise of dominion and control over the thing
actually possessed”); Allen v. State, 249 S.W.3d 680, 697 (Tex. App.—Austin 2008, no
pet.). Rather, the State must link the defendant to the contraband with evidence of
additional facts and circumstances indicating the defendant’s knowledge and control
of the contraband. Allen, 249 S.W.3d at 697.
B. The State Did Not Link Appellant to Apartment 12.
The State put on some evidence linking Apartment 12 to narcotic activity: the
police stopped a car in which they found both drugs and an envelope with the
Apartment 12 address. But the evidence did not link Appellant to Apartment 12.
Corporal Uranga testified that he saw a black man in a white t-shirt come from behind
the brick wall near Apartment 12 and go into the parking lot—a parking lot with exits
on both its north and south sides—but did not see where that man went after that.
Corporal Uranga did not describe the man, other than stating that he was black and—
like the Impala’s driver and one of the men he questioned outside Apartment 12—
wearing a white t-shirt. Not long after, he saw Appellant sitting as a passenger in a
Hyundai that was driving toward the parking lot’s exit. Appellant was wearing a white
t-shirt. Corporal Uranga did not know if Appellant was the man he saw near
Apartment 12, did not see Appellant get into the car, and did not know how long the
car had been in the parking lot.
This evidence is insufficient to create a reasonable inference that Appellant was
linked to Apartment 12. Accordingly, evidence linking Appellant to the drugs in the
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Hyundai cannot be based on any connection between Apartment 12 and narcotic
activity and could be based only on Appellant’s presence in the car.
C. The State’s Evidence Did Not Establish Appellant’s Care,
Custody, Control, and Management of the Contraband.
The State argues that the evidence established facts and circumstances that link
Appellant to the drugs in the car. First, it points out that Appellant was present at the
time of the search, i.e., Appellant and the drugs were in the same place at the same
time, which, as the State acknowledges, is not enough to establish possession. See
Hargrove v. State, 211 S.W.3d 379, 385 (Tex. App.—San Antonio 2006, pet. ref’d)
(stating that when the defendant is not in exclusive possession of the place where
contraband is found, additional independent facts and circumstances must link the
defendant to the contraband in order to raise a reasonable inference of the
defendant’s knowledge and control of the contraband); see also Allen, 249 S.W.3d at
697; cf. Damron v. State, 570 S.W.2d 933, 936 (Tex. Crim. App. 1978) (holding evidence
did not link Appellant to narcotics found in the house he lived in when the evidence
showed, among other things, that the defendant was not at home at the time of the
search and that “there were other persons present at the time of the search and shown
to be living there so [the defendant] was not in exclusive possession”). Second, “the
marijuana was in close proximity to or accessible by Appellant” because he was in the
front passenger seat and the marijuana was in the glove compartment. See Le v. State,
479 S.W.3d 462, 468 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting that the
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appellant had access to and control over the truck where drugs were found). Third,
“there was an odor of the contraband present at the scene,” which could alert
Appellant to the marijuana’s presence. See Christopher v. State, 639 S.W.2d 932, 935–36
(Tex. Crim. App. 1982) (stating that the fact that odor of marijuana could be detected
outside the cab of a pickup truck “suggests that the [defendant] would become aware
of the existence of the [drug] before entering the cab”), overruled on other grounds by
Preston v. State, 700 S.W.2d 227 (Tex. Crim. App. 1985). Fourth, the glove
compartment where the marijuana was found was an enclosed place. See Poindexter v.
State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (concluding that the appellant
exercised care, custody, control, and management over drugs found hidden in the
appellant’s home in a space that was accessible to the appellant as a resident but not
accessible to a casual visitor, when there was no evidence that would support a
conclusion that the appellant was an innocent bystander to someone else’s drug
operations within his own home), overruled on other grounds by Robinson v. State, 466
S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). And fifth, Appellant was in
possession of $1,000, “a large amount of cash.” See Abdel-Sater v. State, 852 S.W.2d
671, 676 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (stating that “[i]f the
amount of money found in appellant’s possession is more than would normally be
carried by an individual, it might be indicative of dealing in narcotics”). The State
argues that this evidence links Appellant to the marijuana in the glove compartment
“and provides sufficient logical force for the jury to have concluded beyond a
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reasonable doubt that Appellant possessed the marijuana.” See Chavez v. State, 769
S.W.2d 284, 288 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d) (listing various
links between a defendant and contraband that may establish a defendant’s care,
custody, and control of the contraband when the defendant is not in sole possession
of the location where the contraband is found); see also Evans v. State, 202 S.W.3d 158,
162 (Tex. Crim. App. 2006) (stating that when looking at links3 between the defendant
and the contraband, it is “not the number of links that is dispositive, but rather the
logical force of all of the evidence, direct and circumstantial”).
1. Presence and Proximity
When arrested, Appellant was in the same place as the marijuana. As noted
above, that fact alone is not enough to establish possession. See Hargrove, 211 S.W.3d
3
Courts have considered the following possible “links” in determining whether
the evidence is sufficient to show possession of a narcotic:
(1) whether the defendant was present 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
at the time of the arrest the defendant was under the influence of
narcotics, (5) possessed other contraband or narcotics, or (6) made
incriminating statements; (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
drugs were found in an enclosed place; (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.
Evans v. State, 202 S.W.3d 158, 161 n.4 (Tex. Crim. App. 2006).
13
at 385. Nor is proximity alone enough; rather, it must be determined whether his
proximity, in combination with other evidence, is enough to show possession. See
Harris, 532 S.W.3d at 531; Allen, 249 S.W.3d at 697 (“Mere presence of an accused at a
place where contraband is found, even in close proximity thereto, does not in itself
justify a finding of joint possession.”). We therefore must look at the other facts and
circumstances that could support a finding of possession.
2. The Marijuana Odor
Officer Lane’s testimony was evidence from which the jury could believe there
was a marijuana odor somewhere in the car. That odor could have alerted Appellant
to its presence, see Christopher, 639 S.W.2d at 935–36, assuming of course that
Appellant was familiar with its odor—an assumption for which there was no
evidence. Because being aware of someone else’s possession of contraband does not
make a person a joint possessor of the contraband, Appellant’s assumed awareness of
the existence of marijuana in the car could not, by itself, demonstrate that Appellant
had care, custody, and management of it. See McGoldrick, 682 S.W.2d at 578 (“[M]ere
presence alone at a place where narcotics or dangerous drugs are being used or
possessed by others does not justify a finding of joint possession.”); Allen, 249 S.W.3d
at 697 (“The mere presence of an accused at place where contraband is being
possessed or used by others, and even the accused’s knowledge of an offense by
others, does not constitute joint possession of the contraband.”)
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3. The Contraband Was in An Enclosed Space.
The State cites the fact that the drugs were in an enclosed space as evidence
showing possession without discussing why courts consider such evidence as linking
contraband and a defendant and without discussing whether that reasoning applies
here. Contraband’s location in an enclosed space is evidence of possession when it
has been hidden in a secret location accessible to or likely to be used by the defendant
but not an innocent party. For example, in Poindexter, the Texas Court of Criminal
Appeals pointed out that the contraband hidden in the defendant’s home in a space
that was accessible to the defendant as a resident but not accessible to a casual visitor
was not evidence that would support a conclusion that the defendant was an innocent
bystander to someone else’s drug operations within his own home. See 153 S.W.3d at
406 (concluding that the defendant exercised care, custody, control, and management
over drugs found hidden in his home).
Here, Appellant was not driving the car when it was stopped. He did not own
the car. While the glove compartment in this case was accessible to Appellant as a
passenger—assuming it was unlocked, a point on which no evidence was presented at
trial—it was not more accessible to Appellant than the car’s owner. There was no
evidence of how long Appellant was in or had access to the car other than the short
time between when Corporal Uranga saw the car leaving its space and when Officer
Lane stopped it. The only evidence showing any connection between Appellant and
the car was in Corporal Uranga’s body cam video; on the video, the driver stated that
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she went to the apartment complex to pick up a friend. Assuming that friend was
Appellant, however, the video was not shown to the jury. There was no evidence that
Appellant had any right of possession to the car or that established his link to the car
other than that he was in it when the police stopped it.
The police had the driver step out of the car first, leaving Appellant alone in
the car, but they had Appellant keep his hands outside the window during that time
period. There was no evidence that he touched the glove compartment—for
example, there was no evidence of his fingerprints on the glove compartment or on
the fanny pack or any of the bags inside it. See Barbosa v. State, 537 S.W.3d 640, 646
(Tex. App.—San Antonio 2017, no pet.) (noting that despite the defendant’s assertion
that he did not possess the drugs found in a vehicle and that he had no access to the
vehicle, his fingerprints were found on the cellophane wrapping the drugs); see also
Lassaint v. State, 79 S.W.3d 736, 745 (Tex. App.—Corpus Christi 2002, no pet.)
(discussing different scenarios involving fingerprint evidence in possession cases and
holding that in that case the defendant’s fingerprints on a shopping bag holding
smaller bags of drugs did not establish a connection between the defendant and the
drugs when someone else’s fingerprints were on the smaller bags but the defendant’s
were not). There was no testimony that any officer saw Appellant make any furtive
gestures or movement toward the glove compartment.
Given the evidence at trial, the fact that the glove compartment is an enclosed
space does not give rise to a reasonable inference that the drugs were under
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Appellant’s care, custody, control,and management, even assuming he could tell by
the car’s odor that drugs were in the car. See Allen, 249 S.W.3d at 694, 697 (stating
that when contraband is found hidden or secreted, the State must address whether the
accused knew of the existence of the secreted place and its contents and that
knowledge that others in the place have committed an offense does not show
possession).
4. The Cash
A defendant’s possessing cash in a “large amount” can be evidence of narcotic
activity because, when combined with other evidence, it can show that the defendant
is involved in buying or selling drugs. See, e.g., Carr v. State, No. 08-11-00315-CR, 2013
WL 5873299, at *1 (Tex. App.—El Paso Oct. 30, 2013, pet. ref’d) (not designated for
publication) (noting officer’s testimony that “it was sometimes common for drug
dealers to have large amounts of cash on them depending on whether they have just
bought or sold drugs”). The phrase “large amount” is amorphous. Compare Soliz v.
State, No. 12-18-00040-CR, 2019 WL 1142473, at *4 (Tex. App.—Tyler Mar. 12,
2019, no pet.) (mem. op., not designated for publication) (“Appellant was found to be
in possession of $540, a substantial amount of cash.”) (emphasis added), with Jones v.
State, No. 01-14-00385-CR, 2015 WL 4591745, at *2 (Tex. App.—Houston [1st Dist.]
July 30, 2015, no pet.) (mem. op., not designated for publication) (“Harrington also
seized from appellant’s pockets approximately $507 in cash, which, although not a
large amount, was a ‘decent amount of cash to have on a person.’”) (emphasis
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added); see also Evans, 202 S.W.3d at 165 (stating that the defendant’s having $160 had
some slight probative value in connecting him to care or custody of drugs). “The
amount of cash must be viewed in conjunction with the surrounding circumstances to
determine whether it is a large quantity.” See Torres v. State, 466 S.W.3d 329, 333–34
(Tex. App.—Houston [14th Dist.] 2015, no pet.); cf. Evans, 202 S.W.3d at 165 (stating
that defendant’s having $160, viewed in a vacuum, was “hardly dispositive” but that
evidence showed defendant did not have a job, and concluding that when combined
with other evidence that he was found sitting next to $1,300 worth of contraband in
plain view, the $160 had slight probative value in connecting him to the contraband);
In re A.P., 512 S.W.3d 602, 609 (Tex. App.—El Paso 2017, no pet.) (stating in juvenile
proceeding that fifteen-year-old A.P.’s having $140 was evidence of a link with the
drug operation going on in the house he had been arrested in).
Here, the only evidence linking the cash to Appellant was that it was under his
seat. He was not alone in the car, it was not his car, and there was no evidence that he
was the one that put the cash there; no officer testified, for example, that they saw
him make any movements consistent with putting the cash under the seat.
Assuming the jury could infer that the cash belonged to Appellant based solely
on its location, the jury heard no evidence that the cash was related to criminal
activity. See Willis v. State, No. 02-16-00163-CR, 2017 WL 4819375, at *9 (Tex.
App.—Fort Worth Oct. 26, 2017, no pet.) (mem. op., not designated for publication)
(“[M]oney found in close quarters with controlled substances . . . do[es] not alone
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provide evidence of the nexus between money and the sale or distribution of a
controlled substance.”). Moreover, the jury heard no testimony that having that much
cash was consistent with drug activity. Contra Thomas v. State, No. 05-12-01119-CR,
2013 WL 5786087, at *3 (Tex. App.—Dallas Oct. 28, 2013, pet. ref’d) (not designated
for publication) (noting testimony of officer that “the denominations of money found
at the house were consistent, based on his training and experience, ‘with street
denominations used in drug sales’”). Further, there was no testimony that the cash
was in denominations used in drug sales or in increments consistent with drug sales.
See id.; Williams v. State, No. 01-11-00017-CR, 2012 WL 2357416, at *8 (Tex. App.—
Houston [1st Dist.] June 21, 2012, pet. ref’d) (mem. op., not designated for
publication) (noting that two officers testified that large amounts of cash bundled in
thousand-dollar increments was consistent with money obtained through drug
dealing). Also, the State did not put on evidence that Appellant had no job or other
evidence that the money may not have come from a legitimate source. Contra Carroll
v. State, 266 S.W.3d 1, 3 (Tex. App.—Waco 2008, pet. ref’d) (holding that sufficient
evidence supported jury’s finding that defendant possessed cocaine when, among
other evidence, he was arrested with $628 in cash in his pocket despite being
unemployed). Instead, the only testimony related to cash and criminal activity was
Officer Lane’s testimony that he personally thought that $1,000 was a lot to carry but
that carrying cash alone does not give probable cause to arrest someone and is not an
19
indication of criminal activity, that he did not know where the cash came from, and
that he had no evidence that the cash was at all related to any criminal activity.
5. The Combined Evidence Does Not Sufficiently Link
Appellant to the Contraband.
None of the facts or circumstances relied on by the State are sufficient on their
own to show either sole possession or joint possession with the driver. However, in
determining whether evidence is sufficient to show an offense, we do not look at the
evidence in isolation; rather, we review the combined pieces of circumstantial
evidence, coupled with reasonable inferences from them. Evans, 202 S.W.3d at 166;
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). We thus summarize all of
the circumstantial evidence from the record that is relevant to linking Appellant to the
drugs found in the Hyundai.
Appellant was a passenger in a car in which drugs were found. There was an
odor of marijuana that was detectable somewhere in the car or possibly outside of it
(assuming the jury believed Officer Lane’s testimony that the heat-sealed bag the
drugs were stored in at trial explained why he could not smell the marijuana half a
foot away from him in the courtroom). This odor, assuming that Appellant was
familiar with the odor of marijuana, could have alerted him to its presence in the car.
However, the drugs were not in plain view to confirm their presence. And neither
were they secreted away in a location giving rise to the reasonable inference that
Appellant, as opposed to the driver or some other person, was responsible for putting
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the drugs there. Appellant was sitting close enough to the glove compartment that he
was physically capable of doing so, but there was no testimony or other evidence
suggesting that he did so. There was no evidence that police found Appellant’s
fingerprints on the glove compartment or on any of the bags holding the drugs.
There was $1,000 under the seat on which Appellant had been sitting, but there was
no evidence of where the money came from or to whom it belonged. There was no
evidence, other than the existence of drugs in the glove compartment, suggesting that
the money came from the sale of drugs. Appellant did not own the car and was not
driving it. There was no evidence showing how long Appellant had been in the car.
The State did not have to disprove all other reasonable alternative hypotheses
inconsistent with Appellant’s guilt. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim.
App. 2012). But it did have to prove beyond a reasonable doubt that not only would
it have been possible for Appellant to exercise care, custody, control, and
management of the drugs but that he actually did so. Under the specific
circumstances of this case, while the facts may be suspicious, the State did not sustain
its burden of proof that Appellant committed the charged offense, and we cannot
conclude that a rational trier of the facts could have found the essential elements
beyond a reasonable doubt. See McGoldrick, 682 S.W.2d at 580. We sustain
Appellant’s second issue, which is dispositive. Accordingly, we do not reach
Appellant’s first issue challenging whether the jury’s oral finding of guilt constitutes a
verdict or his third issue asserting harm.
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CONCLUSION
Because the evidence is insufficient to support appellant’s conviction, we
reverse the trial court’s judgment and render a judgment of acquittal. See Tex. R. App.
P. 43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19, 24–25, 98 S. Ct. 2151, 2154–55
(1978); Burks v. United States, 437 U.S. 1, 16–18, 98 S. Ct. 2141, 2150–51 (1978);
Winfrey v. State, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013).
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 30, 2019
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