                                                                                  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
(952)674-8748 (office)
(952)674-8748 (cell)
(952)674-8748 (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. 19, 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
john08@example.com.


      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 john08@example.com. 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 john08@example.com. 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 john08@example.com.


      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 john08@example.com. 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. 19, 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.” john08@example.com. 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 john08@example.com. 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 john08@example.com. 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 john08@example.com. 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
john08@example.com. 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 john08@example.com. 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.” john08@example.com.


      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
(952)674-8748
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

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