Tate, Dallas Carl

PD-0730-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS November 13, 2015 Transmitted 11/13/2015 2:48:47 PM Accepted 11/13/2015 2:57:12 PM ABEL ACOSTA No. PD-0730-15 CLERK IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DALLAS CARL TATE, Appellant v.

THE STATE OF TEXAS, Appellee

Appeal from Montague County

* * * * *

STATE’S BRIEF ON THE MERITS * * * * *

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No.13803300

JOHN R. MESSINGER

Assistant State Prosecuting Attorney Bar I.D. No. 24053705

P.O. Box 13046

Austin, Texas 78711 [email protected]

512/463-1660 (Telephone)

512/463-5724 (Fax) NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT *The parties to the trial court’s judgment are the State of Texas and Appellant, Dallas Carl Tate. *The case was tried before the Honorable Jack A. McGaughey, 97th Judicial District Court, Montague County, Texas. *Counsel for Appellant at trial was Jeannette Richmond, Richmond Law Office, 900 8th Street, Suite 115, Wichita Falls, Texas 76301. *Counsel for Appellant on appeal was Lynn Switzer, P.O. Box 2040, 406 N. Grand Ave., Suite 108, Gainesville, Texas 76241. *Counsel for the State at trial was Paige Williams, District Attorney, and Casey Hall, Assistant District Attorney, 97th Judicial District, P.O. Box 55, Montague, Texas 76251. *Counsel for the State on appeal was Zachary Renfro, Special Prosecutor, 304 Clay St., Nocona, Texas 76255. *Counsel for the State before this Court is John R. Messinger, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.

i TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. The law of possession and sufficiency review . . . . . . . . . . . . . . . . . 5 II. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ii INDEX OF AUTHORITIES

Cases

Abercrombie v. State, 528 S.W.2d 578 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . 7 Aston v. State, 01-07-00427-CR, 2009 Tex. App. LEXIS 9568 (Tex. App.–Houston [1st Dist.] Dec. 17, 2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Coons v. State, 22 S.W.2d 459 (Tex. Crim. App. 1929) . . . . . . . . . . . . . . . . . . . . . 8 Duncantell v. State, 563 S.W.2d 252 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . 9 Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) . . . . . . . . . . . . . 5, 6, 7, 10 Ex parte Garcia, 104 S.W.3d 902 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . 9 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . 7 Mendoza v. State, 492 S.W.2d 489 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . 9 Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015) . . . . . . . . . . . . . . . . . . . 7 Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . 5, 6 Ramos v. State, 478 S.W.2d 102 (Tex. Crim. App. 1972) (rehearing) . . . . . . . . . . 8 Sims v. State, 13 S.W.2d 98 (Tex. Crim. App. 1929) (rehearing) . . . . . . . . . . . . . . 9 Tate v. State, 463 S.W.3d 272 (Tex. App.–Fort Worth 2015) . . . . . . . . . . . . 2, 6, 8 Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . 9 Statutes and Rules

TEX. CODE CRIM. PROC. art. 38.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii No. PD-0730-15

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DALLAS CARL TATE, Appellant v.

THE STATE OF TEXAS, Appellee * * * * *

STATE’S BRIEF ON THE MERITS * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through its State Prosecuting Attorney, and respectfully presents to this Court its brief on the merits.

STATEMENT OF THE CASE

The court of appeals acquitted appellant of possession of a controlled substance, holding that “the only link between Tate and the syringe was that Tate was the driver and purported owner of the vehicle in which the syringe was found in a location that would have been conveniently accessible to both Tate and [a passenger].”1 STATEMENT REGARDING ORAL ARGUMENT

Oral argument was not requested.

ISSUE PRESENTED

Did the court of appeals ignore multiple rules of sufficiency review and substitute its judgment for the jury’s when it held there was insufficient evidence connecting appellant to the contraband found in plain view in the center console of a car that he owned and was driving?

STATEMENT OF FACTS

Detective Rick Beckham stopped a Pontiac Grand Prix driven by appellant because appellant was wanted on two warrants.2 There was one passenger in the front, one in the back, and a dog.3 The front passenger was Bonita Proctor.4 The rear passenger was Sherita Yvonne Hale, a friend of Proctor’s.5

Beckham immediately asked appellant to step out and escorted him to the rear of the Grand Prix.6 From there, Beckham could “clearly” see Proctor moving, but he did not see her reach over towards the area of the air-conditioning controls.7 Appellant told Beckham he owned the car but “hadn’t had any paperwork transferred yet.”8 The car was not reported stolen.9 After Beckham confirmed the warrants, he arrested appellant.10

Beckham removed the passengers after requesting a unit to transport appellant to jail.11 They had remained inside the Grand Prix for roughly five minutes.12 Beckham searched their purses and found nothing.13 When DPS Trooper Rachel Russell arrived, she searched the female passengers.14 She found nothing.15 Beckham then impounded the vehicle and conducted an inventory pursuant to a written policy.16 Beckham found a syringe containing .24 grams of methamphetamine in an open compartment underneath the radio and climate controls.17 It was in plain view and directly to the right of the driver’s seat.18 It would have been easily accessed by the driver and front passenger but not within reach of the backseat passenger.19

Appellant testified. He admitted to three prior convictions, including one for drug possession.20 But he denied placing or having any knowledge of the syringe in the compartment, and wondered which of his passengers put it there.21 Appellant and Proctor “dated for a time,” and he knew both passengers to have been “charged with drug-related offenses.”22

SUMMARY OF THE ARGUMENT

Rather than view the evidence linking appellant to the meth-filled syringe in the light most favorable to the verdict, the court of appeals ignored some of the evidence, re-weighed other evidence, focused on links that were not present, and substituted its inferences for those of the jury. When viewed with proper deference to the role of the jury, the evidence shows that drug-filled paraphernalia was found in plain view and within reach of appellant in his own car. When combined with his history with drugs and decision to associate with people he knew to be involved in drugs, a rational jury could have determined that his presence there was not merely fortuitous.

ARGUMENT

I. The law of possession and sufficiency review

To prove unlawful possession of a controlled substance, 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.23 Possession need not be exclusive.24 However, mere presence at the location where contraband is found is not enough.25

In order to protect innocent bystanders from conviction based solely upon “fortuitous proximity” to someone else’s drugs, this Court requires evidence that, when combined with proximity, links the defendant to the contraband.26 Courts of appeals, including the court below, have compiled lists of possible links.27 Some are obvious, such as finding drugs or drug paraphernalia on the defendant.28 The rest fall into three basic categories: • Whether the presence of drugs should have been apparent to anyone present.29 • The defendant’s relationship to the place.30 • The defendant’s relationship to the other persons present.31 These links “are not a litmus test.”32 Notably, whether the defendant was present when the search was conducted is merely one of the factors to be considered.33 And it is not the number of links that is dispositive, but rather the logical force of all of the evidence—direct and circumstantial—combined with rational inferences therefrom.34 As with all sufficiency review, it is “the jury’s prerogative to weigh the evidence, to judge the credibility of the witnesses, and to choose between conflicting theories of the case.”35 This means that focusing on the evidence that was not admitted at trial, or the reasonableness of alternative hypotheses, is not permitted.36 II. Application

The evidence shows that appellant “possessed” the meth-filled syringe. Appellant was not in the wrong place at the wrong time; he was in the driver’s seat of his own car. He was no stranger to drugs; he previously agreed to serve five years for possession of a controlled substance. He was not the victim of unlucky association; he invited into his car people he knew had a history with drugs. He had dated one of them. In light of the circumstances, the conclusion that appellant 1) knew the syringe within his reach and in plain view was contraband, and 2) exercised control, management, or care over the substance, is rational.

As always, more evidence is better. The court of appeals is correct that the syringe was not fingerprinted,37 it was not seen before appellant stepped out of the Grand Prix,38 and there is no evidence that the syringe was not in the exclusive possession of Proctor or Hale when appellant left the vehicle.39 Filling any of these gaps would have made the State’s case better. But their absence does not render the evidence insufficient.

Nor does the possibility that one of his passengers placed the syringe in the console after appellant stepped out of his car. This is hardly the first case in which the defendant claimed that contraband had been deposited in or on his property in his absence and without his knowledge.40 It is not even the first case in which a driver claimed a passenger planted drugs and paraphernalia after he exited the car.41 Had appellant no passengers to blame, he could have blamed Detective Beckham.42 Jurors are more than capable of determining the weight to be given these claims, even without Beckham’s testimony that he had a clear view of the passengers and never saw either of them reach toward the console.

Moreover, the jury did not simply reject an alternative theory presented by defense counsel—it rejected the theory out of appellant’s own mouth. Although it is conceivable that a jury could find a testifying defendant to be wholly incredible yet still agree with his version of events, it cannot be irrational to do the opposite.

III. Conclusion

As this Court said when it rebuked the court of appeals in Evans for its consideration of alternative inferences and missing links, “The jury presumably went through exactly the same weighing of evidence, credibility assessments, and alternative-explanation exercises and came to the opposite conclusion, i.e., appellant was connected to the drugs. Under federal and Texas law, juries trump both trial and appellate judges on weight-of-evidence determinations.”43 This Court found the evidence sufficient in Evans. The result should be no different in this case.

PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals reverse the judgment of the Court of Appeals.

Respectfully submitted,

/s/ John R. Messinger JOHN R. MESSINGER

Assistant State Prosecuting Attorney Bar I.D. No. 24053705 P.O. Box 13046

Austin, Texas 78711 [email protected] 512/463-1660 (Telephone) 512/463-5724 (Fax)

CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this document contains 3,122 words.

/s/ John R. Messinger John R. Messinger Assistant State Prosecuting Attorney

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 13th day of November, 2015, a true and correct copy of the State’s Brief on the Merits has been eFiled or e-mailed to the following:

Zachary Renfro

Special Prosecutor

304 Clay St.

Nocona, Texas 76255 [email protected]

Paige Williams

District Attorney

P.O. Box 55

Montague, Texas 76251 [email protected]

Lynn Switzer

P.O. Box 2040

406 N. Grand Ave., Suite 108

Gainesville, Texas 76241 [email protected] /s/ John R. Messinger John R. Messinger Assistant State Prosecuting Attorney