Peter Ezebunwa v. State ( 2015 )


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  •                                                                                   ACCEPTED
    03-14-00682-CR
    5949405
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    7/6/2015 4:38:32 PM
    JEFFREY D. KYLE
    CLERK
    No. 03-14-00682-CR
    IN THE COURT OF APPEALS             FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    FOR THE THIRD JUDICIAL DISTRICT     7/6/2015 4:38:32 PM
    JEFFREY D. KYLE
    Clerk
    Peter Ezebunwa
    vs.
    State of Texas
    APPELLANT’S BRIEF
    On appeal from Cause Number D-1-DC-10-206948
    In the 427th District Court
    Travis County, Texas
    Honorable Jim Coronado, Presiding
    Amber Vazquez Bode
    Attorney at Law
    State Bar No. 24039225                 ORAL ARGUMENT
    1004 West Ave.                     RESPECTFULLY REQUESTED
    Austin, Texas 78701
    (512) 220-8507 (office)
    (512) 917-3676 (cell)
    (512) 480-0760 (fax)
    IDENTITIES OF PARTIES COUNSEL
    Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
    Procedure, a complete list of all parties to this action and counsel are as
    follows:
    Parties:                         Mr. Peter Ezebunwa, Appellant
    State of Texas, Appellee
    Attorney for the Appellant:      Amber Vazquez Bode
    1004 West Ave.
    Austin, Texas 78756
    Attorneys for the State:         Appellate Division
    Rosemary Lehmberg
    Travis County District Attorney’s Office
    509 West 11th Street
    Austin, Texas 78701
    PETER EZEBUNWA
    No. 03-14-00682-CR                     ii                        Appellant’s Brief
    TABLE OF CONTENTS
    IDENTITIES OF PARTIES AND COUNSEL ......... ii
    TABLE OF CONTENTS........................................... iii
    INDEX OF AUTHORITIES...................................... iv
    STATEMENT OF THE CASE ...................................1
    ISSUES PRESENTED ..................................... ……..3
    SUMMARY OF FACTS .............................................4
    SUMMARY OF THE ARGUMENT .........................10
    POINT OF ERROR: THE EVIDENCE IS INSUFFICENT TO SUPPORT
    THE TRIAL COURT’S FINDING THAT APPELLANT HAD VIOLATED
    THE TERM ON HIS COMMUNITY SUPERVISION, SPECIFCALLY,
    THAT EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
    “CARE, CUSTODY OR CONTROL” OF COCAINE…10
    PRAYER FOR RELIEF............................................18
    CERTIFICATE OF SERVICE .................................20
    CERTIFICATE OF COMPLIANCE .........................21
    PETER EZEBUNWA                             iii                     Appellant’s Brief
    No. 03-14-00682-CR
    INDEX OF AUTHORITIES
    Armstrong v. State, 
    82 S.W.3d 444
    (Tex. App.-Austin 2002)…………….15
    Brown v. State, 
    911 S.W.2d 744
    (Tex. Crim. App. 1995) (en banc)……… 11
    Burks v. United States, 
    437 U.S. 1
    , 
    98 S. Ct. 2141
    , 
    57 L. Ed. 2d 1
    (1978) ....13
    Butler v. State, 
    769 S.W.2d 234
    (Tex. Crim. App. 1989) …………..……12
    Cantu v. State, 
    842 S.W.2d 667
    (Tex. Crim. App. 1992) (en banc)...........11
    Cardona v. State, 
    665 S.W.2d 492
    (Tex. Crim. App. 1984)………............10
    Cobb v. State, 
    851 S.W.2d 871
    (Tex. Crim. App. 1993) ………….………10
    Deshong v. State, 
    625 S.W.2d 327
    (Tex. Crim. App. [Panel Op.] 1981) ..12
    Dickey v. State, 
    693 S.W.2d 386
    (Tex. Crim. App. 1984) ……...........…..12
    Dubry v. State, 
    582 S.W.2d 841
    (Tex. Crim. App. 1979)… ……………..13
    Duff v. State, 
    546 S.W.2d 283
    (Tex. Cr. App. 1977).………………...……13
    Easley v. State, 
    564 S.W.2d 742
    (Tex. Cr. App. 1978)…….…………..…13
    Estrada v. State, 
    643 S.W.2d 753
    (Tex.App.-San Antonio 1982, no pet.)...16
    Garrett v. State, 
    619 S.W.2d 172
    (Tex.Crim.App.1981).…….…………..11
    Greene v. Massey, 
    437 U.S. 1
    9, 
    98 S. Ct. 2151
    , 
    57 L. Ed. 2d 15
    (1978).. ….13
    Hackleman v. State, 
    919 S.W.2d 440
    (Tex.App.-Austin 1996, pet. ref'd,
    untimely filed)……………………………………………………………...15
    Howard v. State, 
    972 S.W.2d 121
    (Tex.App.-Austin 1998, no pet.)…...….16
    Hyett v. State, 
    58 S.W.3d 826
    (Tex.App.-Houston [14th Dist.] 2001, no
    pet.)…………………………………………………………………………16
    Kulhanek v. State, 
    587 S.W.2d 424
    (Tex. Crim. App. 1979)….………….11
    Martinets v. State, 884S. W. 2d 185 (Tex. App.-Austin 1994, no pet.) ...…11
    Meeks v. State, 
    692 S.W.2d 504
    (Tex. Crim. App. 1985)……...…..……..12
    Moreno v. State, 
    22 S.W.3d 482
    (Tex. Crim. App. 1999) (en banc)……...10
    Ortega v. State, 
    860 S.W.2d 561
    (Tex. App.-Austin 1993, no pet.)……...11
    PETER EZEBUNWA                        iv                       Appellant’s Brief
    No. 03-14-00682-CR
    Reyes v. State, 
    575 S.W.2d 38
    (Tex.Cr.App. 1979)..………………...…….14
    Rickels v. State, 
    202 S.W.3d 759
    (Tex. Crim. App. 2006)………………...10
    Sinor v. State, 
    612 S.W.2d 591
    (Tex. Crim. App. 1981)…………………..13
    Solis v. State, 
    589 S.W.2d 444
    (Tex. Crim. App. 1979)……………….......10
    Stogsdill v. State, 
    552 S.W.2d 481
    (Tex. Cr. App. 1977)………………….13
    Villarreal v. State, 
    865 S.W.2d 501
    (Tex.App.-Corpus Christi 1993, pet.
    ref'd)………………………………………………………………………..16
    Willis v. State, 
    2 S.W.3d 397
    (Tex. App.-Austin 1999, no pet.)………...…10
    TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2011)…10
    PETER EZEBUNWA                       v                      Appellant’s Brief
    No. 03-14-00682-CR
    THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
    COMES NOW, PETER EZEBUNWA, Appellant in this cause, by
    and through his attorney of record, Amber Vazquez Bode, and pursuant to
    the provisions of Tex. R. App. Pro. 38, et seq., files this brief on appeal.
    STATEMENT OF THE CASE
    Appellant entered into a plea agreement for four year deferred
    adjudication community supervision (“probation”) on November 1, 2011on
    a third degree felony charge of Possession of a Controlled Substance-
    Cocaine. (CR Vol. 1, pgs 46-55). On April 10, 2014, Appellant was
    arrested and charged with a subsequent Possession of a Controlled
    Substance- Cocaine. (CR Vol. 1, pgs 158-159). A Motion to Proceed with
    Adjudication of Guilt was filed by the Travis County District Attorney’s
    Office on April 15, 2014. (CR Vol. 1, pgs 158-159). On October 8, 2014,
    Appellant plead “not true” to the allegations and a hearing on the merits was
    heard by the trial court. (RR Vol. 1, pg 1-6). The trial court found the
    allegation “true” by a preponderance of the evidence that Appellant
    committed a subsequent offense by having “care, custody or control” of
    cocaine. (RR Vol. 1, pg 74). The trial court revoked Appellant’s deferred
    adjudication probation and sentenced him to five years in the Texas
    Department of Criminal Justice institutional division. (RR Vol. 1, pg 75).
    PETER EZEBUNWA                          1                        Appellant’s Brief
    No. 03-14-00682-CR
    The subsequent Possession of a Controlled Substance- Cocaine case (D1DC-
    14-202070), the substance of which was the sole reason given for the
    revocation, was dismissed on October 20, 2014. The trial court certified
    appellant’s right to appeal, and appellant consequently perfected appeal.
    (CR 180). Tex.R.App.Proc. 26.3.
    PETER EZEBUNWA                        2                       Appellant’s Brief
    No. 03-14-00682-CR
    ISSUE PRESENTED
    THE EVIDENCE IS INSUFFICENT TO SUPPORT THE TRIAL
    COURT’S FINDING THAT APPELLANT HAD VIOLATED THE TERM
    ON HIS COMMUNITY SUPERVISION, SPECIFCALLY, THAT
    EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
    “CARE, CUSTODY OR CONTROL” OF COCAINE.
    PETER EZEBUNWA              3             Appellant’s Brief
    No. 03-14-00682-CR
    SUMMARY OF FACTS
    On October 4, 2011 Appellant entered into a plea deal with the Travis
    County District Attorney’s Office on a third degree felony Possession of a
    Controlled Substance in the 427th District Court in Travis County, Texas.
    (CR Vol. 1, pgs 39-43). Mr. Ezebunwa was placed on a four year deferred
    adjudication probation. (CR Vol. 1, pgs 44-55). As conditions of probation
    he had to pay various fees, report to probation, and attend drug treatment.
    (CR Vol. 1 pgs 47-49). On February 2, 2012, after hearing a Motion to
    Proceed with Adjudication of Guilt that was based on the Appellant testing
    positive for marijuana, the trial court added a condition that Appellant
    complete the SMART residential treatment program and aftercare. (CR Vol.
    1, pg 64). On July 10, 2012, after a Motion to Proceed with Adjudication of
    Guilt was filed based on Appellant’s unsuccessful discharge from SMART,
    the trial court amended the conditions of his probation and added the six to
    nine month SAFPF program. (CR Vol. 1, pg 66-68). Appellant successfully
    completed the SAFPF program, but was not successful in the aftercare
    requirement at the Austin Transitional Center, so on April 1, 2013, another
    Motion to Proceed with Adjudication of Guilt was filed by the Travis
    County District Attorney. (CR Vol. 1, pg 75). The trial court continued
    Appellant on May 30, 2013. (CR Vol. 1, pg 150).
    PETER EZEBUNWA                         4                       Appellant’s Brief
    No. 03-14-00682-CR
    On April 10, 2014, Appellant was charged with a subsequent
    Possession of a Controlled Substance-Cocaine. (CR Vol. 1, pg 159). A
    Motion to Proceed with Adjudication of Guilt was filed by the Travis
    County District Attorney on April 15, alleging a positive urine specimen,
    delinquency on various fees and that Appellant “[C]omitted a subsequent
    criminal offense of Possession of a Controlled Substance in that on or about
    the 10th day of April 2014, in the County of Travis, State of Texas, Peter
    Ezebunwa did then and there knowingly and intentionally possess a
    controlled substance, to wit: Cocaine in an amount by aggregate weight,
    including any adulterants and dilutants, of 4 grams or more but less than 200
    grams.” (CR Vol. 1, pg 159).
    On October 8, 2014, Appellant plead “not true” to the allegations
    contained in the Motion to Proceed with the Adjudication of Guilt. (RR Vol.
    1, pg 6). A hearing was held and the State called Ms. Leslie Barrett as their
    first witness, Appellant’s probation officer. (RR Vol. 1, pg 7). During Ms.
    Barrett’s testimony, it was established that Appellant had completed SAFPF
    and aftercare successfully. (RR Vol. 1, pg 19). Furthermore, Ms. Barrett
    testified that she could not speak to the urine sample’s analysis and the State
    agreed to “skip over it,” effectively abandoning it as an allegation. (RR Vol.
    1, pg 13). Ms. Barrett also testified that she had been working with
    PETER EZEBUNWA                         5                        Appellant’s Brief
    No. 03-14-00682-CR
    Appellant on his probation fees due to the fact that he had been attending in-
    patient treatment on and off for over twelve months and was unable to seek
    employment while in treatment. (RR Vol. 1, pgs 17-21). Ms. Barrett also
    stated that she was “working with him” on his delinquent supervision fees
    during his last visit with her and had waived $480.00 in fees that were
    alleged in the State’s Motion to Proceed with Adjudication of Guilt. (RR
    Vol. 1, pg 21).
    Joshua Euhus, an Austin Police Officer who arrested Appellant on the
    subsequent charge, was called by the State next. (RR Vol. 1, pg 23).
    Officer Euhus testified that he responded to a call from a woman about
    people in her yard, met with the complainant, who claimed that there were
    three to four people she thought might be selling drugs in her backyard. (RR
    Vol. 1, pg 25). Officer Euhus testified that he saw a group of people near
    the ally, and specifically a black man in a green jacket standing near the
    fence. (RR Vol. 1, pg 27). He went on to say the man matched the
    description that had been provided to him and that the man was “milling
    around,” and that at least three other people were standing close to him,
    approximately less than ten feet away from where he was standing. (RR
    Vol. 1, pgs 27-28). Officer Euhus said that the black male was “shifting his
    weight” while standing and that he watched him for a couple of minutes.
    PETER EZEBUNWA                         6                        Appellant’s Brief
    No. 03-14-00682-CR
    (RR Vol. 1, pg 28). He stated that the black man in the green jacket was
    identified as Appellant, and that he decided to detain all four people. (RR
    Vol. 1, pg 29).
    Officer Euhus testified that based on the location being an extremely
    high drug trafficking area and the statement of the complainant, he detained
    them based on a reasonable suspicion that illegal drug trafficking was taking
    place. (RR Vol. 1, pg 30). He went on to say that he walked over near
    where Appellant had first been standing and saw a pile of rocks stacked up.
    (RR Vol. 1, pg 31). He kicked the rock pile down and discovered a bag with
    small white rocks that in his training and experience he recognized as crack
    cocaine. (RR Vol. 1, pg 31). Officer Euhus spoke to Appellant and
    Appellant explained that he was coming from a girlfriend’s house (RR Vol.
    1, pg 44-45).
    Appellant was subsequently searched and found to have a pay check
    stub and $740.00 in his pockets. (RR Vol. 1, pg 35). Testimony went on to
    say that another person in the group became belligerent and ended up getting
    arrested. (RR Vol. 1, pg 36). Officer Euhus went on to explain that he was
    familiar with that specific area and that drug dealers frequently hide drugs
    nearby instead of carrying with them to deal on the street. (RR Vol. 1, pg
    37). He went on to say that if a suspect was arrested near that intersection
    PETER EZEBUNWA                         7                       Appellant’s Brief
    No. 03-14-00682-CR
    and their drugs were not on them that the drugs would most likely remain
    wherever they had been hidden. (RR Vol. 1, pg 37).
    The officer explained that his theory of Appellant being in
    “possession” of the drugs was based on the fact that the rock pile was less
    than five feet away from Appellant and he considered it a “lunge able
    distance.” (RR Vol. 1, pg 38). He clarified on cross-examination that he
    never saw Appellant touch the drugs in question, nor did he see him touch
    the rock pile. (RR Vol. 1, pg 38). He stated the only thing he saw Appellant
    touch was a nearby chair, and that he watched him stand there for
    approximately one minute. (RR Vol. 1, pgs 38-39). Furthermore, Officer
    Euhus testified that he never saw Appellant sell drugs in that area, and that
    he did not check the criminal history or credibility of the complaining
    witnesses that they spoke to in the first place. (RR Vol. 1, pg 44).
    Officer Bolin testified next for the State, and he testified that
    Appellant did not do anything in his observation that heightened his
    suspicions. (RR Vol. 1, pg 50). Officer Bolin testified that it was a high
    drug trafficking area and that a complaining witness had claimed she had
    “observed people dealing drugs.” (RR Vol. 1, pg 51). He stated it was late
    in the evening and dark outside. (RR Vol. 1, pg 52). He went on to say that
    after they discovered the drugs under the pile of rocks in the alley, him and
    PETER EZEBUNWA                         8                         Appellant’s Brief
    No. 03-14-00682-CR
    Officer Euhus, “[h]ad a little powwow about it and kind of decided what we
    were going to do. We determined at that point in time we did have probable
    cause to believe that he [Appellant] was the only one in care, custody, and
    control of the crack cocaine, so we decided he was under arrest.” (RR Vol.
    1, pg 53).
    Officer Bolin went on to clarify that he never actually saw Appellant
    sell any drugs and that no officer found any drugs on his person. (RR Vol.
    1, pgs 54-55). He also never saw in touching the rocks or digging in the
    rock pile in the alley. (RR Vol. 1, pg 55-56).
    The final witness was a chemist that testified the substance recovered
    from the bag under the rock pile was in fact cocaine. (RR Vol. 1, pgs 60-
    69).
    PETER EZEBUNWA                        9                        Appellant’s Brief
    No. 03-14-00682-CR
    SUMMARY OF ARGUMENT
    POINT OF ERROR: THE EVIDENCE IS INSUFFICENT TO SUPPORT
    THE TRIAL COURT’S FINDING THAT APPELLANT HAD VIOLATED
    THE TERM ON HIS COMMUNITY SUPERVISION, SPECIFCALLY,
    THAT EVIDENCE SUPPORTED A FINDING THAT APPELLANT HAD
    “CARE, CUSTODY OR CONTROL” OF COCAINE.
    Standard of Review
    The decision to proceed to adjudication of guilt and to revoke
    deferred-adjudication community supervision is reviewable in the same
    manner as a revocation of ordinary community supervision. See TEX.
    CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2011). An order
    revoking community supervision under an abuse of discretion
    standard. Rickels v. State, 
    202 S.W.3d 759
    , 763 (Tex. Crim. App.
    2006); Cardona v. State, 
    665 S.W.2d 492
    , 493 (Tex. Crim. App. 1984). In
    a revocation hearing, the State must prove by a preponderance of
    the evidence that a defendant violated the terms of her probation. Moreno v.
    State, 
    22 S.W.3d 482
    , 488 (Tex.Crim.App. 1999) (en banc); Cobb v.
    State, 
    851 S.W.2d 871
    , 873 (Tex.Crim.App. 1993) (en banc); Willis v.
    State, 
    2 S.W.3d 397
    , 399 (Tex.App.-Austin 1999, no pet.). The State's
    burden of proof is satisfied if the greater weight of credible evidence creates
    a reasonable belief that the defendant violated a condition of
    her probation as alleged by the State. Solis v. State, 
    589 S.W.2d 444
    , 447
    PETER EZEBUNWA                        10                         Appellant’s Brief
    No. 03-14-00682-CR
    (Tex.Crim.App.1979); Kulhanek v. State,587 S.W.2d 424, 426
    (Tex.Crim.App.1979); Ortega v. State, 
    860 S.W.2d 561
    , 564 (Tex.App.-
    Austin 1993, no pet.). A trial court's decision to revoke probation is
    reviewed for an abuse of discretion. Cardona v. State, 
    665 S.W.2d 492
    , 493
    (Tex.Crim.App.1984) (en banc); 
    Willis, 2 S.W.3d at 398-99
    ; 
    Ortega, 860 S.W.2d at 564
    .
    A trial court abuses its discretion if the decision is so clearly wrong as
    to lie outside the zone within which reasonable persons might
    disagree. Cantu v. State, 
    842 S.W.2d 667
    , 682 (Tex.Crim.App.1992) (en
    banc); 
    Willis, 2 S.W.3d at 399
    . We view the evidence presented in a
    revocation proceeding in the light most favorable to the trial court's
    ruling. Garrett v. State, 
    619 S.W.2d 172
    , 174 (Tex.Crim.App.1981); 
    Willis, 2 S.W.3d at 399
    ; 
    Ortega, 860 S.W.2d at 564
    . As the trier of fact, it is left to
    the trial court to judge the credibility of witnesses and the weight to be given
    their testimony. 
    Garrett, 619 S.W.2d at 174
    ; 
    Ortega, 860 S.W.2d at 564
    .
    To prove drug possession, the State must show (1) a defendant
    exercised care, custody, control, or management over the drugs, and (2) that
    she knew she possessed a controlled substance. Brown v. State, 
    911 S.W.2d 744
    , 747 (Tex.Crim.App.1995) (en banc); Martinets v. State, 884 S.W.2d
    PETER EZEBUNWA                         11                        Appellant’s Brief
    No. 03-14-00682-CR
    185, 187 (Tex.App.-Austin 1994, no pet.) When considering a complaint
    that the evidence is insufficient, the court must determine whether, viewing
    the evidence in the light most favorable to the verdict, any rational trier of
    fact could have found the essential elements of the crime beyond a
    reasonable doubt.. See Butler v. State, 
    769 S.W.2d 234
    , 239 (Tex. Crim.
    App. 1989).
    A defendant must exercise care, custody, control, and management
    over illicit drugs, knowing them to be drugs, before he is
    guilty of their possession. Dickey v. State, 
    693 S.W.2d 386
    , 389
    (Tex.Crim.App.1984). If the defendant is not in sole possession of the
    premises where drugs are found, the state must prove an affirmative link
    between the contraband and the defendant to establish his possession.
    Deshong v. State, 
    625 S.W.2d 327
    , 329 (Tex.Crim.App. [Panel Op.] 1981).
    An affirmative link is established by facts and circumstances from which
    one may reasonably infer that the defendant knew the contraband existed
    and that he exercised care, custody, control, and management over it.
    
    Dickey, 693 S.W.2d at 389
    . However, mere presence alone is insufficient to
    affirmatively link a defendant to narcotics. Meeks v. State, 
    692 S.W.2d 504
    ,
    509 (Tex. Crim. App. 1985).
    PETER EZEBUNWA                         12                        Appellant’s Brief
    No. 03-14-00682-CR
    It is settled that where this Court finds the evidence to be
    insufficient to sustain a conviction, the constitutional guarantee against
    double jeopardy precludes further prosecution of the cause. Burks v. United
    States, 
    437 U.S. 1
    , 
    98 S. Ct. 2141
    , 
    57 L. Ed. 2d 1
    (1978); Greene v.
    Massey, 
    437 U.S. 1
    9, 
    98 S. Ct. 2151
    , 
    57 L. Ed. 2d 15
    (1978).
    While the evidence may strongly suggest that the appellant is guilty
    of the offense charged, a conviction based on circumstantial evidence cannot
    be sustained if the circumstances do not exclude every other reasonable
    hypothesis except that of the guilt of the accused. Proof that amounts only
    to a strong suspicion or mere probability is insufficient. Dubry v. 
    State, supra
    ; Sewell v. 
    State, supra
    ; Easley v. State, 
    564 S.W.2d 742
    (Tex.Cr.App.
    1978); Stogsdill v. State, 
    552 S.W.2d 481
    (Tex.Cr.App. 1977); Duff v.
    State, 
    546 S.W.2d 283
    (Tex.Cr.App. 1977). Texas courts have found that
    the evidence creates no more than a suspicion of the appellant's guilt of the
    offense charged, and is insufficient to sustain the conviction. See Dubry v.
    
    State, supra
    ; Sewell v. 
    State, supra
    . Sinor v. State, 
    612 S.W.2d 591
    , 594
    (Tex. Crim. App. 1981).
    PETER EZEBUNWA                         13                        Appellant’s Brief
    No. 03-14-00682-CR
    A conviction based on circumstantial evidence cannot be sustained if
    the circumstances do not exclude every other reasonable hypothesis except
    that of the guilt of the accused, and proof amounting to only a strong
    suspicion or mere probability is insufficient. Sewell v. 
    State, supra
    ; Easley v.
    State, 
    564 S.W.2d 742
    (Tex.Cr.App.1978); Stogsdill v. State, 
    552 S.W.2d 481
    (Tex.Cr.App.1977). Similar to the facts in Appellant’s case, Dubry v.
    State involved a scenario in which the Defendant was in a pick up a mile
    from an airport in which marijuana had just been brought in on two separate
    flights and hidden in bags close to the runway. Dubry v. State, 
    582 S.W.2d 841
    , 842 (Tex. Crim. App. 1979). Three people ran and two had been
    caught and ground to air radios and red flashers were found near them. 
    Id. Dubry was
    found a mile away in a truck and possessed ground to air radio
    and red flashers identical to the ones found near the two other people. 
    Id. Police found
    marijuana in sweepings from the pick up bed, but no other
    connection other than proximity and suspicious circumstances. 
    Id. The Court
    held that the evidence creates only a strong suspicion of the appellants'
    guilt of the offense charged, and is insufficient to sustain the convictions.
    See Sewell v. 
    State, supra
    ; Reyes v. State, 
    575 S.W.2d 38
    (Tex. Cr. App.
    1979); Wilkes v. 
    State, supra
    .
    PETER EZEBUNWA                         14                        Appellant’s Brief
    No. 03-14-00682-CR
    Armstrong v. State is even more analogous to the current fact
    scenario, in which a woman in a car accident. Armstrong v. State, 
    82 S.W. 3d
    444 (Tex. App.-Austin 2002). Officers responded to an accident scene in
    which a two women and three children had been in the car, and based on an
    observation that Armstrong “[w]as more interested in locating this purple
    bag….than worrying about the children.” Id at 446. Felicia, Armstrong’s
    passenger, was holding the bag and gave consent to search it. 
    Id. The officer
    never saw Armstrong holding the bag in question, but attributed the
    contents, which was cocaine, to Armstrong because of the report that she
    was concerned about it. 
    Id. The court
    explained, that to prove drug possession, the State must
    show (1) a defendant exercised care, custody, control, or management over
    the drugs, and (2) that she knew she possessed a controlled substance.
    Brown v. State, 
    911 S.W.2d 744
    , 747 (Tex.Crim.App.1995) (en banc);
    Martinets v. State, 
    884 S.W.2d 185
    , 187 (Tex.App.-Austin 1994, no pet.).
    When a defendant is not in exclusive possession or control of the place
    where the drugs are found, the State must affirmatively link the defendant
    with the drugs. 
    Brown, 911 S.W.2d at 747-48
    ; Hackleman v. State, 
    919 S.W.2d 440
    , 444 (Tex.App.-Austin 1996, pet. ref'd, untimely filed);
    PETER EZEBUNWA                       15                       Appellant’s Brief
    No. 03-14-00682-CR
    
    Martinets, 884 S.W.2d at 187
    . More than the defendant's mere presence
    near the drugs is required, especially when several people are present or in
    possession of the place where the drugs are found. Villarreal v. State, 
    865 S.W.2d 501
    , 503 (Tex.App.-Corpus Christi 1993, pet. ref'd); Estrada v.
    State, 
    643 S.W.2d 753
    , 756 (Tex.App.-San Antonio 1982, no pet.).
    It went on to explain that the State's evidence need not exclude every
    reasonable hypothesis other than the defendant's guilt, but it must show facts
    and circumstances that, viewed in the totality of the circumstances, indicate
    the defendant's knowledge and control over the drugs. See 
    Brown, 911 S.W.2d at 748
    ; Hyett v. State, 
    58 S.W.3d 826
    , 830 (Tex.App.-Houston [14th
    Dist.] 2001, no pet.); Howard v. State, 
    972 S.W.2d 121
    , 124 (Tex.App.-
    Austin 1998, no pet.). Affirmative links between a defendant and illegal
    drugs may include: the defendant's presence when the drugs are found;
    whether the drugs or other contraband were in plain view; the defendant's
    proximity to and the accessibility of the drugs; whether the defendant was
    under the influence of drugs when the drugs were found; whether the
    defendant possessed other contraband or drug paraphernalia; whether the
    defendant made incriminating statements or furtive gestures or tried to flee;
    whether there was any noticeable drug odor; whether the defendant had the
    PETER EZEBUNWA                        16                       Appellant’s Brief
    No. 03-14-00682-CR
    right to possess the place where the drugs were found; and whether that
    place was enclosed. See 
    Hyett, 58 S.W.3d at 830
    ; 
    Martinets, 884 S.W.2d at 188
    ; 
    Villarreal, 865 S.W.2d at 503-04
    . In the current case under review, the
    only links are the defendant’s proximity and presence.
    In       its      finding,          the    court       decided,
    “ Although the State had the burden of showing Armstrong
    knowingly and intentionally exercised care, custody, control, or
    management over the drugs found in the purple bag, it was not
    obligated to prove this beyond a reasonable doubt or to exclude
    all reasonable alternative hypotheses other than Armstrong's
    guilt. See 
    Brown, 911 S.W.2d at 748
    ; Cobb v. State, 
    851 S.W.2d 871
    , 873 (Tex. Crim. App. 1993)(en banc); 
    Martinets, 884 S.W.2d at 187
    . However, the State was obligated to
    affirmatively link Armstrong to the drugs by a preponderance
    of the evidence. See 
    Brown, 911 S.W.2d at 748
    ; 
    Cobb, 851 S.W.2d at 873
    . We do not believe the State carried its burden of
    producing evidence that could create the reasonable belief that
    Armstrong both exercised care, custody, or control over the
    drugs and knew she possessed a controlled substance. See
    PETER EZEBUNWA                       17                      Appellant’s Brief
    No. 03-14-00682-CR
    
    Brown, 911 S.W.2d at 747
    ; 
    Solis, 589 S.W.2d at 447
    ; 
    Kulhanek, 587 S.W.2d at 426
    . The affirmative links are too weak to
    support the district court's finding that Armstrong violated her
    probation by intentionally and knowingly possessing the drugs
    found in the purple bag.” Armstrong at 450.
    In the case at hand, the Appellant was never seen with the
    drugs, he did not appear to be under the influence of any substance,
    there was no smell of a substance noted, there were other people
    around, and unlike the Armstrong case, and he never made any
    affirmative statement linking him to the drugs.          Therefore, the
    evidence was insufficient to support a finding that the Appellant
    violated his probation by a preponderance of the evidence.
    PRAYER FOR RELIEF
    WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
    prays this Court to reverse the district court’s order and remand for further
    proceedings. Also alternatively, Appellant respectfully prays this Court to
    reverse his sentence and remand the case to the trial court for further
    proceedings.
    PETER EZEBUNWA                        18                        Appellant’s Brief
    No. 03-14-00682-CR
    Respectfully submitted,
    /s/Amber Vazquez Bode
    AMBER VAZQUEZ BODE
    Attorney at Law
    1004 West Ave.
    Austin, Texas 78701
    (512) 220-8507
    SBN # 24039225
    ATTORNEY FOR APPELLANT
    PETER EZEBUNWA            19   Appellant’s Brief
    No. 03-14-00682-CR
    CERTIFICATE OF SERVICE
    By affixing my signature above, I hereby certify that a true and
    correct copy of the forgoing APPELLANT’S BRIEF, was filed through the
    Third Court of Appeals Efile Texas system and through the United States
    Postal Service to:
    Catherine Scales
    Assistant District Attorney
    Travis County District Attorney’s Office
    P.O. Box 1748
    Austin, Texas 78767
    On July 6, 2015.
    PETER EZEBUNWA                       20                       Appellant’s Brief
    No. 03-14-00682-CR
    CERTIFICATE OF COMPLIANCE
    I certify that this document contains 4,194 words (counting all parts of
    the document). The body text is in 14 point font, and the footnote text is in
    12 and 14 point font.
    PETER EZEBUNWA                        21                        Appellant’s Brief
    No. 03-14-00682-CR