Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/8/2015 4:00:38 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00877-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 10/8/2015 4:00:38 PM CHRISTOPHER PRINE CLERK

Appeal No. 01-14-00877-CR ___________________________________ In the First Court of Appeals ___________________________________ FALLON NICOLE WAGNER, Appellant Vs.

THE STATE OF TEXAS, Appellee. ___________________________________ On Appeal from the 149th Judicial District Court of Brazoria County,

Cause No. 73035. ___________________________________ MOTION FOR REHEARING FOR APPELLANT, FALLON NICOLE WAGNER ___________________________________ To the Honorable Justices of the First Court of Appeals:

Comes now appellant, Fallon Nicole Wagner, by and through her attorney of record, Cary M. Faden, and files this his Motion For Rehearing of the September 29,

2015, decision of the First Court Of Appeals of Texas in Wagner v. State , No. 01-14-

00877-CR, slip op. at 1-11, (Tex. App. - Houston (1st Dist.), September 29, 2015, pet.

pending), and would respectfully show the Court the following:

I. On April 17, 2014, Appellant, was indicted for the state jail degree felony offense of Possession Of A Controlled Substance-Enhanced; (1 CR at 5). The offense

was alleged to have occurred on or about February 26, 2014. (1 CR at 5). On October

20, 2014, Appellant pleaded not guilty to the indictment. (3 RR at 4). After a jury

trial, the jury assessed Appellant’s punishment at confinement in the Texas

Department of Criminal Justice-Institutional Division for a period of eight years

Texas Department of Criminal Justice-Institutional Division, with a $1,000.00 fine.

(2 CR at 4). On October 28, 2014, Appellant timely filed her notice of appeal. (1 CR

at 60).

In the Brief For Appellant, one point of error was briefed. Appellant files this his Motion For Rehearing wherein, Appellant is concerned as to given the Court

failed to hear Oral Argument in this appeal, wherein it appears clear that this Court

failed to properly apply the law as it related to Appellant’s issue and again argues the

evidence was not legally sufficient to prove that Appellant was guilty of the offense

of possession of a controlled substance. It is Appellant’s contention that given the

tenor of the Opinion, this Court has wholly failed to reach all of the merits of

Appellant’s argument and misconstrued Appellant’s argument as to the Brief For

Appellant, and how said application will affect Appellant’s case.

II. In its opinion this Court responded to Appellant’s points of error and held: To prove unlawful possession of a controlled substance, the State must prove that the defendant exercised control, management, or care over the substance and that

he knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d

402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY CODE §

481.002(38). In this case the State was required to prove that Wagner exercised

control, management, or care over the methamphetamine and that she knew that the

substance in the silver gift box was methamphetamine. However, the State was

entitled to rely upon circumstantial evidence because circumstantial evidence "is as

probative as direct evidence in establishing the guilt of the actor, and circumstantial

evidence alone may be sufficient to establish guilt." Carrizales, 414 S.W.3d at 742

(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

Regardless of whether the evidence is direct or circumstantial, it must establish that a defendant's connection to the contraband was more than fortuitous. Poindexter,

153 S.W.3d at 405-06. Presence or proximity, when combined with other evidence,

either direct or circumstantial, may be sufficient to establish the element of possession

beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006).

The Court of Criminal Appeals has recognized numerous "affirmative links" as non-exclusive factors that may establish possession, including whether: (1) the

defendant was present when a search was conducted; (2) the contraband was in plain

view; (3) the contraband was in proximity to and accessible by the defendant; (4) the

defendant was under the influence of narcotics when arrested; (5) the defendant

possessed other contraband when arrested; (6) the defendant made incriminating

statements when arrested; (7) the defendant attempted to flee; (8) the defendant made

furtive gestures; (9) there was an odor of contraband; (10) other contraband or drug

paraphernalia was present; (11) the defendant owned or had the right to possess the

place where the contraband was found; (12) the place where the contraband was

found was enclosed; (13) the defendant was found with a large amount of cash; and

(14) the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n.12.

These factors do not comprise "an independent test of legal sufficiency." Id. at 161-62 n.9. Rather, the key legal question is whether the circumstances, in

conjunction with a defendant's presence, justify a conclusion that the defendant

knowingly possessed the contraband. Id. "It is the logical force of the circumstantial

evidence, not the number of links, that supports a jury's verdict." Id. at 166.

When looking at the evidence in the light most favorable to the verdict, the State presented evidence for six of the nonexclusive factors identified by the Court

of Criminal Appeals. However, it is not the number of links that is dispositive, but

rather the logical force of all of the evidence, both direct and circumstantial. Evans,

202 S.W.3d at 162. Based on the logical force of the evidence presented, we find that

a rational jury could have found Wagner guilty beyond a reasonable doubt.

Factors 1 and 3: Wagner's presence when the search was conducted, and Wagner's proximity to and the accessibility of the contraband. Officer Edwards

testified that when he arrived, Wagner was sitting in the driver's seat of the Ford

Focus, and she was the sole occupant. He also testified that he found the silver gift

box containing the methamphetamine on the passenger seat next to Wagner. The jury

was free to rely on the testimony of Officer Edwards as to the location of the box

containing the methamphetamine. The jury was also free to consider the testimony

that the box was sitting on the passenger seat and that Wagner was in the driver seat

and sole occupant of the vehicle as evidence that she was in close proximity to the

contraband and that it was accessible to her.

Factor 4: Whether Wagner was under the influence of narcotics when arrested.

Officer Edwards testified that Wagner's inability to perform field sobriety tests, the

odor of alcohol, and her behavior during the ride to the police station led him to

believe that she was under the influence of both alcohol and methamphetamine. He

testified that Wagner would nod her head and then pick it back up quickly as if she

had a burst of energy, which he said was consistent with the effects of a combination

of alcohol and a stimulant such as methamphetamine. The jury was entitled to rely on

this testimony to determine that Wagner was under the influence of methamphetamine

at the time she was arrested.

Factor 6: Whether Wagner made incriminating statements when arrested.

Officer Edwards testified that after the arrest Wagner told him the crystalline

substance was crystal meth. The jury, as factfinder, was entitled to determine Officer

Edwards's credibility and to consider his testimony as evidence that Wagner knew

that the substance was methamphetamine and as a link between her and control of the

substance.

Factor 10: Whether other contraband or drug paraphernalia was present.

Officer Edwards testified that a purple brandy bag containing pills and two pipes that

could be used for smoking methamphetamine were found in the backseat. Additional

drug paraphernalia were found in the backseat of the car. The jury was entitled to

consider the presence of the additional contraband and drug paraphernalia in the car

as a link between Wagner and the methamphetamine.

Factor 12: Whether the place where the contraband was found was enclosed.

When the officer approached, the car's doors and windows were closed. He had to

knock on the window in order to speak with Wagner. The jury was entitled to

consider this testimony with the testimony that she was the only person in the car in

order to infer that Wagner possessed the methamphetamine. Wagner contends that

several affirmative links are not supported by the evidence. She is correct that some

of the factors that have been used to establish possession are absent in this case. For

example, she was not found with a large amount of cash. See Evans, 202 S.W.3d at

162 n.12. However, the "absence of various affirmative links does not constitute

evidence of innocence to be weighed against the affirmative links present." James v.

State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref d).

Wagner contends that there was no evidence showing she was the owner of the car

in which the methamphetamine was found. Yet the State is not required to prove that

Wagner owned the car in order to show that she exercised control, management, or

care over the methamphetamine and knew what it was. See, e.g., Blackman v. State,

350 S.W.3d 588, 589 (Tex. Crim. App. 2011) (upholding the conviction for

possession of a controlled substance of a passenger in a car that contained cocaine).

The jury was free to determine that she possessed the methamphetamine despite the

fact the car was rented. Wagner also argues that there was no evidence that she had

access to the controlled substance. In Cole v. State, 194 S.W.3d 538 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref d), evidence showing that the substance was

located near the defendant's possessions in the enclosed trunk of a car being driven

solely by the defendant, when combined with evidence supporting other links, was

sufficient for a jury to convict the defendant for possession of a controlled substance.

See Cole 194 S.W.3d at 549. The evidence of Wagner's access was much stronger

than that found to be sufficient in Cole. Additionally, Wagner's personal belongings,

such as her shoes and purse, were scattered next to and among the drugs and

paraphernalia. The jury could rationally conclude that Wagner had access to and

possessed the methamphetamine based on this evidence. Finally, Wagner argues that

there was no evidence that she was the only one to have control over the car.

However, Officer Edwards testified that Wagner was the sole occupant and driver of

the car. The jury was entitled to consider this issue and weigh the evidence in light

of the fact that Officer Edward's testimony was not contested at trial.

III. Appellant contends by her issue that the trial court failed to properly apply the law as it related to Appellant’s issue and again argues the evidence was not legally

sufficient to prove that Appellant was guilty of the offense of possession of a

controlled substance .

Appellant argues that the evidence is insufficient to prove that she had care, custody, or control over the contraband or that he had knowledge of its presence. She

points out that mere presence, by itself, at the scene of the search or in the said

automobile is not enough to support a conviction for possession of a controlled

substance. Herndon v. State, 787 S.W.2d 408 (Tex. Crim. App. 1990). Further,

Appellant argues that other people had access to the automobile where the controlled

substance was found, and that the only evidence linking her to the contraband is the

container or silver gift box found in the automobile where the controlled substance

was found.

In McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989), the Court Of Criminal Appeals stated that analysis of criminal conduct varies according to the

"conduct elements" of the offense. Specifically, the Texas Penal Code, Sec. 6.03

delineates three "conduct elements" which may be involved in an offense: (1) the

nature of the conduct; (2) the result of the conduct; and (3) the circumstances

surrounding the conduct. Any offense may contain any one or more of these "conduct

elements" which alone or in combination form the overall behavior which the

Legislature has intended to criminalize, and it is those essential "conduct elements"

to which a culpable mental state must apply.

Appellant’s contentions indicate that the evidence does not show several affirmative links between her and the substance. First, she was in the automobile and

at the place searched at the time of the search. There was no evidence admitted

showing Appellant was the owner of the automobile in which the controlled

substance was found nor proven by the State. The controlled substance was allegedly

found at or near Appellant’s person, never proven by the State. Appellant argues the

State’s argument hinges on the allegation that Appellant had the controlled substance

at or near his person at the time of the search. There was no evidence presented that

Appellant had access to the controlled substance and sole control over the automobile

as its operator but not owner. Thus, this Court can not find adequate affirmative links

between Appellant and the controlled substance, and thus the evidence is legally

insufficient to support her conviction.

At trial Eric C. Edwards, working for Manvel Police Department, as a night- shift patrol officer testified, on February 26, 2014, around the time of 1:42 a.m., his

attention gravitated towards a vehicle with hazard lights on in a moving lane of

traffic, the inside lane. He was traveling southbound. It was a silver Ford Focus. It

was in the inside lane closest to the median. He stopped and then initiated his

emergency back lights and directional lights. When he does not turn on the full range

of lights, his camera does not activate. The camera was not activated. He made entry

to the front, the front driver's side of the vehicle. It was more of a welfare concern.

He approached the vehicle and made contact with the defendant. He noticed her head

was slumped over as if she may have been asleep. So he gently knocked on the

window to get her attention; and once she rolled the window down, he could smell

a odor of alcohol emanate outside of the vehicle. She responded she was coming from

Houston. She just said she was at a club in Houston with a friend. She planned on

going to Katy, Texas. Katy, Texas, is nowhere close to Katy, 288 southbound. He

claimed she was possibly an intoxicated or inebriated person. This time he asked the

defendant how much have she had to drink. She advised that she had two drinks. Her

movement was somewhat exaggerated. She tried to get to her purse. She didn't seem

to know where anything was at. She also seemed to be a little bit confused and

disoriented about what was going on. He noticed glossy and bloodshot eyes. He

noticed every time she talked her speech was very slurred. He asked her could she

step out of the motor vehicle. She just couldn't find her shoes and she eventually

found one shoe in the front of the vehicle; and as she exited, she found a second one,

he found a second one as she was searching behind the driver's seat. He did field

sobriety tasks, called them standardized field sobriety tests, which consist of three

different tests. One test is called a Horizontal Gaze Nystagmus, where we check eyes

for any impairment of intoxication. Another test that determines your physical and

mental capacities. It's called a Walk-and-Turn, where we give you instructions and

we ask you to follow those instructions and then you walk. The second test is called

a One-Leg Stand, where we're asking, we're asking the person to stand on one leg, the

leg that's, they are most comfortable with and we ask them to count until we tell them

to stop counting. She did not perform the tasks well in his opinion, he felt she was a

poly drug user, a combination of alcohol and maybe another substance that he

couldn't determine. He claimed he could smell alcohol coming off of her body. After

he claimed her failure of the sobriety tests, he asked the defendant to put her hands

behind her back, handcuffed her and advised her she was going to be arrested for

driving while intoxicated. Upon inventorying the vehicle, he searched the front. He

went through the back and kind of came at a angle and saw this silver gift box. And

opened the gift box to see if there's anything that's of monetary value and discovered

some very small crystal-like substance that was in there, rock-like substance, which

eventually was tested to be methamphetamines from a test kit. It was in a transparent,

small baggie. There was a purple E&J package. E&J comes with a purple bag; and

inside that bag, he located some contraband. One looked like a smoking pipe and the

other thing was, it had some pills in it. Because we found what we thought at the time

could be drugs, when we found the crystal substance. Inside the purse, there was

found some pills. Quetiapine, which is a antipsychotic drug. Found near the front

seat, passenger floorboard was a bottle filled with E&J brandy. (4 RR at 161-190).

VOIR DIRE EXAMINATION BY MR. PACKARD: the witness testified that he bagged these as evidence, and when we say "bagged," that means you put them in

bags. Once they were bagged and labeled, when they were labeled and bagged, he

placed them into the Manvel vault. MR. PACKARD: All right. Your Honor, I'm

going to object on the grounds, one, of relevancy; two, that Officer Edwards doesn't

have the personal knowledge required to have these admitted into evidence. In other

words, the proper predicate hasn't been laid. MR. HRACH: He testified, Your Honor,

that those were the same items that he took into custody that are here today, marked,

bagged by that department; and we have established the beginning and end of the

chain of custody to the courtroom. THE COURT: Okay. I'm going to sustain the

objection for now until you put on some more chain of custody. THE COURT: So for

purposes of where we are right now in the testimony, I'll sustain that objection. (4 RR

at 190-196).

Direct examination continued, at the Manvel Jail, already having testing the subject, it was positive for crystal meth. He decided to at least go inside of the jail cell

and ask the subject what was the contents in the little plastic baggie, and she had told

him it was crystal meth. (4 RR at 203-210).

Cross examination, he testified that when he first stopped Ms. Wagner it was in an active traffic lane in the highway but it wasn't videoing in his patrol car. The

vehicle as maybe a vehicle that was stalled or stranded. So for safety purposes he

activated his directional, yellow lights on the vehicle. When he activated those, it did

not activate the camera; and it also activated my back lights on the back of my

vehicle. Only when he activate it's a toggle switch, activate it on fully then the lights

and the camera activates. (44 RR at 210-229). Cross examination continued, the

vehicle Appellant was found was not registered to Fallon Wagner. (5 RR at 6-21).

Again, the Texas Court of Criminal Appeals determined that the Jackson v. Virginia standard is the only standard a reviewing court should apply to determine

whether the evidence is sufficient to support each element of a criminal offense the

State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 894 (Tex. Crim. App. 2010) (plurality op.). Accordingly, under current Texas

law, in reviewing Appellant's issues the Court will apply the Jackson v. Virginia

standard and do not separately refer to legal or factual sufficiency.

All of the evidence is viewed in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a

reasonable doubt, Brooks, 323 S.W.3d at 902. The Court will defer to the fact finder's

resolution of conflicting evidence unless the resolution is not rational. Brooks, 323

S.W.3d at 907. Under the review of the evidence required by Brooks, even in the light

most favorable to the verdict, a rational jury could not conclude that this evidence is

such as to permit it to find beyond a reasonable doubt that Appellant did then and

there intentionally or knowingly possess a controlled substance listed in Penalty

Group One (1), namely, methamphetamine, and the amount of said controlled

substance was, by aggregate weight, including any adulterants and dilutants, less than

one (1) gram. The conviction should be reversed and this Court should render a

judgment of acquittal. This Court should grant a Rehearing.

IV. Appellant files this his Motion For Rehearing due to the fact that this Court, after having rejected the idea of Oral Argument has wholly rejected all of Appellant’s

arguments, and refused to address all of the merits of Appellant’s appeal; and has

misconstrued Appellant’s argument that could effect the analysis of this Court’s

Opinion. Appellant argued in the instant case, and appealed her conviction.

Appellant is in dispute with this Court’s opinion issued and requests that this

Court consider this Motion For Rehearing. Appellant’s contention is that the

arguments in this Court’s Opinion are an inaccurate interpretation and arguably

unclear interpretation of Appellant’s arguments that should merit a Rehearing.

V.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant, Fallon Nicole

Wagner, prays that this Court grant his motion for rehearing and set it for submission

at the earliest possible date; that upon submission and review of the appellate record

and the briefs and argument of counsel, the Court find reversible error in the

judgment of the trial court and issue its opinion and judgment reversing the judgment

of the trial court; and remand the matter to the trial court for a new trial, assessing all

costs of the appeal against appellee, and order execution of the judgment of this Court

in accordance with its opinion.

Respectfully submitted, /s/CARY M. FADEN Cary M. Faden SBN 06768725

77 Sugar Creek Center Blvd., Suite 230 Sugar Land, Texas 77478 Telephone:(281) 491-6182 Facsimile:(281) 491-0049 E-Mail: caryfaden@aol.com Attorney For Appellant CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3) In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this is a computer generated document and I state that the number of words in this

document is approximately 3,800 words. I am relying on the word count of the

computer program used to prepare this document.

/s/CARY M. FADEN Cary M. Faden

CERTIFICATE OF SERVICE In accordance with TEX. R. APP. P. 9.5, I, Cary M. Faden, certify that a true and correct copy of the foregoing motion for rehearing has been served, by hand

delivery, and/or by U.S. Mail, and/or by facsimile transmittal, to Fallon Nicole

Wagner; to the attorney for the State Of Texas, Jeri Yenne, District Attorney, 111 E.

Locust Street, Room 408A, Angleton, Texas 77515 on this 9th day of October, 2015.

/s/CARY M. FADEN Cary M. Faden