Jack Sayadeth v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00067-CR
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JACK SAYADETH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th Judicial District Court
Angelina County, Texas
Trial Court No. 28,305
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
In this case involving the possession of more than four ounces but less than five pounds of
marihuana, there are three principal characters: Jack Sayadeth, Menia Xayavong, and Deshun
Whitby. Sayadeth and Xayavong were travelling together in a Lincoln Navigator along U.S.
Highway 59 in Angelina County 1 and Whitby was riding alone, piloting a Cadillac in close
proximity to them when this travelling party caught the attention of two peace officers in separate
vehicles.
One of the peace officers noticed a traffic violation committed by Whitby in the Cadillac
and pulled the car over. During this traffic stop, a consensual search of the automobile was
conducted and the marihuana was discovered, concealed in the trunk.
Not very much further along the highway, the other officer stopped the Lincoln bearing
Sayadeth and Xayavong for a separate traffic violation. The suspicions of this officer were
aroused when Xayavong and Sayadeth gave conflicting answers to his questions about their
travels. After the officer detected the smell of marihuana on Sayadeth, he searched the vehicle;
however, this search did not reveal the presence of any contraband, but that car contained the
driver‟s license of Whitby (who was driving the Cadillac stopped by the other officer). The State
charged all of Whitby, Xayavong, and Sayadeth with possession of the marihuana located in the
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
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Cadillac. Whitby entered a plea of guilty, but Xayavong and Sayadeth entered not guilty pleas
and were tried together as co-actors in a trial before the court. After the bench trial, both
Xayavong and Sayadeth were found guilty and each was sentenced to two years‟ confinement in a
state-jail facility.
On appeal, Sayadeth argues that the evidence was legally and factually insufficient to
support his conviction.
We reverse the trial court‟s judgment finding Sayadeth guilty and render a judgment of
acquittal because there is legally insufficient evidence affirmatively linking him to the drugs.
At the risk of redundancy, we repeat some of the evidence, but with more detail. At about
midnight, Angelina County sheriff‟s deputies Rusty Allen and Joseph Davidson were patrolling
U.S. Highway 59 when they saw a Cadillac and a Lincoln traveling closely together. Allen
stopped the Cadillac because the license plate light was not working, and Davidson continued to
follow the Lincoln. The driver of the Cadillac, Whitby, was nervous and could display neither a
driver‟s license nor any valid proof of liability insurance. Whitby did not appear intoxicated and
did not smell of alcohol or drugs. Whitby claimed to be returning to Arkansas from visiting his
brother in Houston. He also claimed to be traveling alone.
Whitby maintained that the vehicle was registered to Xayavong and that information was
confirmed by Allen via a computer check. Allen testified that Whitby told him he was driving
Xayavong‟s car because “his was broke down.” At trial, Whitby and Xayavong testified that a
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few weeks prior to the events in question, Whitby agreed to purchase the Cadillac from his former
schoolmate, Xayavong. He paid her $500.00 and she allowed him to drive the car while making
payments on the balance.
Whitby gave Allen consent to search the Cadillac. Nothing was found in the passenger
compartment, but Allen discovered four pounds of marihuana in the vehicle‟s trunk, concealed in
the wheel well beneath a bolted-on speaker box.
While Allen stopped the Cadillac, Davidson continued to follow the Lincoln driven by
Xayavong and also bearing Sayadeth. Allen observed the Lincoln to twice change driving lanes
without first making a signal and stopped the car about two miles distant from where Allen had
stopped the Cadillac. Davidson testified that both Xayavong and Sayadeth appeared nervous and
the two provided conflicting answers about their trip. On one hand, Xayavong told Davidson that
she had arrived in Houston on Wednesday and was visiting family there, but Sayadeth told
Davidson he was visiting family in Houston and he had arrived in Houston on Monday. Although
both claimed that no one was traveling with them, Sayadeth later admitted that they were
accompanied on their trip by a friend of theirs, who was driving Xayavong‟s car back to Arkansas
for them.2 While questioning Sayadeth, Davidson noticed the smell of marihuana on Sayadeth,
and based upon that smell, he searched the vehicle––the search revealing no drugs, but disclosing
Whitby‟s driver‟s license.
2
At trial, Xayavong, Sayadeth, and Whitby all testified that the Lincoln was having car trouble and they were
concerned that it might break down on the trip back from Houston. Whitby agreed to drive the Cadillac and travel
with them in case of car trouble.
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After charges for possession of the drugs were lodged against all three, Whitby pled guilty
and admitted that he bought and hid the drugs, maintaining that neither of the other two defendants
knew anything about it. As stated above, Xayavong and Sayadeth were both found guilty in a
bench trial.
There Is Legally Insufficient Evidence Linking Sayadeth to the Drugs Found in the Cadillac
Sayadeth argues that the trial court erred by denying his motion for directed verdict
because the evidence was legally insufficient to link him to the marihuana found in the Cadillac.
We agree.
In reviewing the evidence for sufficiency, we consider the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979).
In order to prove its case under Section 481.121 of the Texas Health and Safety Code, the
State was required to prove that (1) Sayadeth exercised actual care, control, and management over
the contraband; and (2) Sayadeth knew the substance in his possession was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State, 200 S.W.3d
753, 761 (Tex. App.––Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App. 2007); see TEX.
HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon 2010). “Possession” is defined as “actual
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care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp.
2010).
Where, as here, an accused is not in exclusive possession of the place where contraband is
found, additional independent facts and circumstances must be developed which link the
defendant to the contraband in order to raise a reasonable inference of the defendant‟s knowledge
and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule is designed to protect
an innocent bystander from conviction merely because of fortuitous proximity to someone else‟s
drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the
vicinity of a controlled substance is insufficient to show possession. But proximity, when
combined with other direct or circumstantial evidence, may be sufficient to establish beyond a
reasonable doubt a person‟s possession of a controlled substance. 3 See id. (direct or
circumstantial evidence may be sufficient to establish possession beyond a reasonable doubt).
The evidence linking the accused to the contraband “must establish, to the requisite level of
confidence, that the accused‟s connection with the drug was more than just fortuitous.”
Poindexter, 153 S.W.3d at 405–06. The number of links is not dispositive; rather, we look to the
“logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.
3
We note that the Texas Court of Criminal Appeals stated, “We have used that term „affirmative links,‟ but we
recognize that „affirmative‟ adds nothing to the plain meaning of „link.‟ Henceforth, we will use only „link‟ so that it
is clear that evidence of drug possession is judged by the same standard as all other evidence.” Evans, 202 S.W.3d at
162. Nevertheless, that court has continued to use the term “affirmative links.” Laster v. State, 275 S.W.3d 512, 520
(Tex. Crim. App. 2009); Malone v. State, 253 S.W.3d 253, 258 (Tex. Crim. App. 2008). Therefore, because of its
common use and understood meaning, we do likewise.
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The following is a nonexclusive list of factors that have been found to be 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) whether
the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place
where the contraband was found was enclosed; (5) whether the defendant was under the influence
of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics
when arrested; (7) whether the defendant made incriminating statements when arrested;
(8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures;
(10) whether there was an odor of contraband present at the scene; (11) whether other contraband
or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the
place where the contraband was found; (13) whether the defendant was found with a large amount
of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant
indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211
S.W.3d 379, 385–86 (Tex. App.––San Antonio 2006, pet. ref‟d).
Here, Whitby testified that he bought and concealed the drugs and that Sayadeth had no
knowledge of it. Sayadeth was a passenger in the Lincoln, whereas the drugs were found in the
Cadillac. Sayadeth was not present at the scene where the drugs were found, and he had no way
of accessing them. The State emphasizes that Sayadeth smelled like marihuana and that he and
Xayavong gave conflicting statements concerning their trip plans and activities. However, there
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was no evidence that Sayadeth had consumed marihuana or that he was otherwise under its
influence; none of Sayadeth‟s statements (contradictory or otherwise) connect him to the
contraband found in the Cadillac driven by and under the control of another person. Even
viewing the evidence in the light most favorable to the verdict, the quality of the evidence here is
far too weak and the links too attenuated for a rational trier of fact to find beyond a reasonable
doubt that Sayadeth knew of, or had control over, the contraband. Accordingly, we reverse the
trial court‟s judgment finding Sayadeth guilty and render a judgment of acquittal because there is
legally insufficient evidence affirmatively linking him to the contraband.
Bailey C. Moseley
Justice
Date Submitted: November 9, 2010
Date Decided: November 10, 2010
Do Not Publish
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