Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/29/2015 2:50:56 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-01010-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/29/2015 2:50:56 PM CHRISTOPHER PRINE CLERK
No. 01-14-01010-CR
In the
Court of Appeals
For the First Judicial District of Texas At Houston
No. 1420051
In the 337th District Court of Harris County, Texas
M ARCUS D. J ACKSON Appellant
v. T HE S TATE OF T EXAS Appellee
STATE’S APPELLATE BRIEF D EVON A NDERSON District Attorney Harris County, Texas C ARLY D ESSAUER Assistant District Attorney J OSEPH S ANCHEZ Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/755-5826 Fax No.: 713/755-5809 ORAL ARGUMENT NOT REQUESTED *2 STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of Appellate Procedure P. 39.1, the State does not requests oral argument.
IDENTIFICATION OF THE PARTIES Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County Carly Dessauer Assistant District Attorney on appeal Joseph Sanchez Assistant District Attorney at trial Lauren Bard Assistant District Attorney at trial Erik Locascio Assistant District Attorney at trial Appellant or criminal defendant:
Marcus D. Jackson pro se at trial
Counsel for Appellant:
Kyle B. Johnson Attorney on appeal Alex G. Azzo Standby attorney at trial Trial Judge:
Hon. Renee Magee
Hon. Jay W. Burnett
Hon. Lee Duggan
Hon. Leslie Brock Yates
Hon. A. Reagan Clark
Hon. Mike Wilkinson
ii *3 TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT .................................................... ii
IDENTIFICATION OF THE PARTIES ......................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENT ................................................................................. 3
REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 3
I. The evidence presented at trial is sufficient to prove beyond a reasonable
doubt that the amount of PCP that appellant possessed weighed more than one gram. ........................................................................................................................... 3 CONCLUSION ..................................................................................................................... 9
CERTIFICATE OF COMPLIANCE .............................................................................. 10
CERTIFICATE OF SERVICE ......................................................................................... 11
iii *4 TABLE OF AUTHORITIES CASES
Brooks v. State ,
323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................................................... 4
Clayton v. State ,
235 S.W.3d 772 (Tex. Crim. App. 2007) ..................................................................... 4, 6
Gear v. State ,
340 S.W.3d 743 (Tex. Crim. App. 2011) ..................................................................... 4, 6
Isassi v. State ,
330 S.W.3d 633 (Tex. Crim. App. 2010) ......................................................................... 4
Jackson v. Virginia ,
443 U.S. 307 (1979) ........................................................................................................ 4, 6
STATUTES
T EX . H EALTH & S AFETY C ODE A NN . §481.102(8) (West 2009) ...................................... 5
T EX . H EALTH & S AFETY C ODE A NN . §481.115(a),(c) (West 2009) ................................. 5
RULES
Tex. R. App. P. 9.4(g) ............................................................................................................. ii
Tex. R. App. P. 9.4(i). ........................................................................................................... 10
Tex. R. App. P. 38.2(a)(1)(A)................................................................................................. ii
Tex. R. App. P. 39.1 ............................................................................................................... ii
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE Appellant was charged with possession of a controlled substance, namely phencyclidine or PCP, weighing more than one gram and less than four grams (CR at
13; 6 RR at 167). He entered a plea of not guilty, and a jury trial was held to
determine guilt (CR at 88, 109; 6 RR at 12). The jury found appellant guilty (CR at
107, 109-10; 6 RR at 235). The trial court sentenced him to thirty-five years
confinement in the Texas Department of Criminal Justice (CR at 109-10; 7 RR at 61).
The court certified appellant’s right to appeal, and appellant filed a timely notice of
appeal (CR at 108, 112-13).
STATEMENT OF FACTS On March 4, 2014, two officers, Jeffrey Sneed and Diego Morelli, were working an extra security job at an apartment complex (6 RR at 24, 26, 101). The complex was
known for narcotics activity, particularly PCP, so the officers were suspicious when
they saw appellant enter the complex through a pedestrian gate, walk across the
parking lot, met an unidentified man at a place where narcotics transactions usually
occurred, and immediately turn to leave (6 RR at 26, 27, 28, 29, 30, 31, 32, 47, 107,
111, 113, 116, 117). They suspected that a hand-to-hand narcotics transaction had
just occurred, so they approached appellant while he was attempting to leave the
complex (6 RR at 31, 32, 118, 119). Immediately the officers smelled the strong odor
of PCP surrounding appellant, so they stopped him (6 RR at 32-34, 47, 68, 119, 120).
After confirming that appellant did not live at the apartment complex, Officer Sneed asked appellant if he was “holding a PCP stick” (6 RR at 34, 35, 68, 119).
Appellant said yes and held out his right hand to reveal a cigarette that had been
dipped in PCP (6 RR at 33, 35, 48, 68, 96, 119, 120, 121). When the officers went to
arrest appellant, they found another PCP stick in appellant’s other hand (6 RR at 35,
121). Appellant explained to Officer Sneed: “I’ve had rough times at the house. I
was just trying to smoke them away” (6 RR at 36).
The combined weight of both cigarettes was 1.93 grams, and both tested positive for PCP (6 RR at 166, 167, 168). Chemist M. Kane, who tested the evidence,
noted that both cigarettes were discolored, which in her experience was a visible
indicator that they probably contained PCP (6 RR at 168, 171, 180-81; 8 RR at 5). On
cross-examination, Kane agreed that cigarettes would absorb any liquid they touched
(6 RR at 172). She also agreed that when PCP is a liquid, it can contaminate
substances it touches but stated that she did not know if it was possible for the plastic
baggie holding the PCP sticks to be contaminated without testing (6 RR at 180).
When asked again if PCP would contaminate anything it touches, Kane only testified
that it was possible (6 RR at 183).
SUMMARY OF THE ARGUMENT The evidence presented at trial is sufficient to prove beyond a reasonable doubt that appellant possessed over one gram of PCP at the time of his arrest. As both
officers identified the cigarettes in appellant’s hands as PCP sticks, as appellant
admitted to possessing PCP, as the chemist’s testified that in her experience,
discolored cigarettes contain PCP most of the time, and as the record was not
developed regarding how likely it could be for one PCP stick to contaminate an
unadulterated cigarette, the jury’s verdict is rational and supported by the evidence.
REPLY TO APPELLANT’S POINT OF ERROR I. The evidence presented at trial is sufficient to prove beyond a reasonable
doubt that the amount of PCP that appellant possessed weighed more than one gram.
In his sole point of error, appellant argues that the evidence is insufficient to support the jury’s finding that appellant possessed more than one gram of PCP at the
time of his arrest. Appellant relies on a theory of contamination to contend that no
rational jury could have found the weight necessary to support appellant’s conviction
because both PCP sticks in his possession were kept in the same plastic baggie.
However, in making this argument, appellant overlooks evidence in the record that
supports the jury’s finding that appellant possessed over one gram of PCP and
overlooks the dearth of evidence regarding the possibility of PCP contamination in
the record. Because the evidence that appellant possessed two PCP sticks at the time
of his arrest rationally supports the jury’s determination of the weight of the
controlled substance, appellant’s point of error should be overruled.
Standard of Review Appellate courts review a challenge to the sufficiency of the evidence under the standard announced in Jackson v. Virginia , 443 U.S. 307, 318-20 (1979). See Brooks v.
State , 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Under the Jackson standard,
evidence is insufficient to support a conviction if, considering all record evidence in
the light most favorable to the verdict, no rational jury could have found that each
essential element of the charged offense was proven beyond a reasonable doubt.
Jackson , 443 U.S. at 317-19; Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
Reviewing courts consider both direct and circumstantial evidence and all reasonable
inferences that may be drawn from the evidence to determine whether any rational
fact finder could have found the elements of the offense beyond a reasonable doubt.
Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The jury is the exclusive judge of the credibility of witnesses and the weight of the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As such, the
reviewing court defers to the jury to resolve any conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from “basic facts to ultimate facts.”
Jackson , 443 U.S. at 318; Clayton , 235 S.W.3d at 778.
Applicable Law A person commits an offense if he intentionally or knowingly possesses PCP.
T EX . H EALTH & S AFETY C ODE A NN . §481.102(8) (West 2009); T EX . H EALTH &
S AFETY C ODE A NN . §481.115(a),(c) (West 2009).
Analysis Despite appellant’s contention that the evidence presented at trial was insufficient to show that he possessed more than one gram of PCP, any rational jury
would have found that appellant had two PCP sticks in his hands when arrested.
While appellant relies on a contamination theory to attack the sufficiency of the evidence, he ignores that the record before the jury was under developed in this
aspect. Indeed, the only evidence appellant can point to for his theory of
contamination is Kane’s agreement to appellant’s question that “PCP, it sucks in, it’s a
fluid, it sucks in, it takes up everything, filters, everything, whatever it touches” (6 RR
at 180). However, Kane only acknowledged in her testimony that it was possible that
PCP could contaminate things by touch without providing any opinion as to how
probable the likelihood of contamination would be when asked by appellant (6 RR at
183). When questioning Kane at trial, appellant did not ask her specifically whether
one PCP stick could contaminate a cigarette unadulterated with PCP by spending 49
days in the same bag—the central claim he raises in his brief; instead, appellant merely
asked if PCP contaminated the plastic baggie holding the evidence (6 RR at 180).
Thus, the record presents no evidence that could undermine the jury’s verdict based
on the theory that appellant makes on appeal because the evidence did not provide
any indication of the likelihood of possible touch contamination.
The record simply does not contain enough information on the possibility of touch contamination to render the evidence insufficient. While appellant tries to
buttress his theory of contamination by proposing that the jury could have made
inferences about the probability of contamination based on the strong odor of the
PCP, no rational jury could leap from the fact that PCP smells strongly to the
conclusion that the PCP in one cigarette would spread to the other cigarette if it did
not already contain PCP. Especially when considering the other evidence in the
record that supports the jury’s finding regarding the weight of the PCP in appellant’s
possession, the evidence is sufficient beyond a reasonable doubt. See Jackson , 443
U.S. at 317-19; Gear v. State , 340 S.W.3d at 746.
First, the evidence is sufficient because the officers presented evidence that both cigarettes found in appellant’s possession contained PCP. Officer Sneed
testified that he identified both cigarettes held in appellant’s hands as PCP sticks at
the time of arrest (6 RR at 35). Similarly, the jury could infer that Officer Morelli also
identified the cigarettes as PCP sticks because he labeled the evidence bag as such (6
RR at 102-4, 181-81; State’s Ex. 1). See Clayton , 235 S.W.3d at 778 (noting that
reasonable inferences can be made from the evidence presented at trial). Adding to
these identifications from the time of appellant’s arrest, the manner in which the
cigarettes appeared and the manner in which appellant carried them also supports the
jury’s verdict. Morelli noted that both cigarettes were the same brand, and Sneed
testified that appellant clasped both cigarettes in his hands (6 RR at 35, 105). Both
officers testified that they suspected that appellant engaged in a hand-to-hand
narcotics transaction with the unidentified man in the complex andsoon after
discovered the PCP stick in his hands (6 RR at 31, 32, 118, 119). From this evidence,
the jury could reasonably infer that appellant obtained both cigarettes from the same
source and that both contained PCP. Given that both cigarettes were identified by
the officers as PCP sticks when appellant was arrested, that they were the same brand,
and that appellant held both in his hands after the hand-to-hand transaction, the
evidence rationally supports the jury’s determination that both contained PCP.
Second, the evidence is sufficient to prove that both cigarettes contained PCP at the time of appellant’s arrest because Kane testifies that she anticipated that the
cigarettes would contain PCP based on their appearance. Kane noted that both
cigarettes were discolored in her testimony and in her report (6 RR at 168, 180-81; 8
RR at 5). She informed the jury that from her experience of testing similar evidence,
she has recognized that when she tests discolored cigarettes “most of the time it’s
PCP” (6 RR at 168, 180-81; 8 RR at 5). Kane testified that when she is presented with
a discolored cigarette “I still do the testing before I can tell exactly what’s present,
because I have had [ sic ] cigarette before where there was nothing in there even though
it was discolored,” but “most of the time when I get this color of manufactured
cigarette, it comes back with positive for PCP” (6 RR at 171, 181). Combined with
Officer Morelli’s testimony that both cigarettes were in substantially the same
condition at trial as they were when he took custody of them, Kane’s testimony that
both cigarettes were the same color as cigarettes that had tested positive for PCP in
her experience strongly supports the jury’s finding that both cigarettes contained PCP
when Morelli bagged them as evidence (6 RR at 105). As such, the evidence is
sufficient to support the jury’s determination.
Finally, the evidence is sufficient because appellant admitted that he possessed PCP when he encountered the officers. Appellant, when asked by Officer Sneed
whether he was holding “a PCP stick,” answered that he was and showed the officer
the cigarette that he had in his right hand (6 RR at 35, 48, 68, 119, 120, 121).
Mentioned above, appellant had a second cigarette of the same brand in his left hand
(6 RR at 35, 105, 121). Appellant also admitted that he knew PCP was bad for him to
smoke but needed it to help him cope with his troubles at home (6 RR at 35-36).
Given this admission by appellant at the time of his arrest that he possessed PCP and
held two cigarettes in his hands immediately after engaging in what appeared to be a
hand-to-hand transaction to the officers, the jury’s verdict is rational and supported by
the evidence.
In light of this evidence that both cigarettes were identified as PCP sticks at the time of appellant’s arrest, that the chemist’s experience led her to anticipate that both
cigarettes would contain PCP based on their shade of discoloration, and that appellant
admitted to possessing PCP to the officers, appellant’s theory of contamination does
not render the jury’s determination of the weight of the PCP in his possession
irrational. Any rational jury could not reasonably conclude based on the evidence
presented in the record that one PCP stick contaminated an unadulterated cigarette
while waiting testing. As such, the evidence sufficiently supports the jury’s rational
determination that appellant possessed over one gram of PCP. Thus, this Court
should overrule appellant’s point of error.
CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s point of error and affirm his conviction.
D EVON A NDERSON District Attorney Harris County, Texas /s/ Carly Dessauer ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 State Bar No. 24069083 dessauer_carly@dao.hctx.net curry_alan@dao.hctx.net *14 CERTIFICATE OF COMPLIANCE The undersigned attorney certifies that this computer-generated document has a word count of 2,058 words, based upon the representation provided by the word
processing program that was used to create the document. Tex. R. App. P. 9.4(i).
/s/ Carly Dessauer ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 State Bar No. 24069083 *15 CERTIFICATE OF SERVICE The State will serve a copy of the foregoing instrument to appellant’s attorney though TexFile:
Kyle B. Johnson
Attorney at Law
The Kiam Building
929 Preston, Suite 200
Houston, Texas 77002
kbjohnsonlaw@sbcglobal.net
/s/ Carly Dessauer ________________________________________________________________________________________________________________________________________________________________________________________________________________________________ C ARLY D ESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 State Bar No. 24069083 Date: July 29, 2015