Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/3/2015 4:11:13 PM JEFFREY D. KYLE Clerk IN T HE C O U RT OF APPEALS N O. 03>15-00258-CR THIRD COURT OF APPEALS 12/3/2015 4:11:13 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00258-CR *1 ACCEPTED ^[8080310] CLERK OF T HE T H I RD D I S T R I CT OF TEXAS STEPHANLE M A IE H E I N T Z L E M A N N, Appellant V.

T HE STATE OF TEXAS

Appellee Appeal in Cause N o. 42636 in the 3 3^ Judicial District Court of Burnet County, Texas Brief For Appellee

OFFICE OF D I S T R I CT A T T O R N EY 33^^ and 424'^ J U D I C L \ D I S T R I C TS Gary W. Bunyard Assistant District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us State Bar. N o. 03353500 A T T O R N EY FOR APPELLEE December 03, 2015

Oral Argument Waived

Identity Of The Parties

Trial Court

Honorable J. Allan Garrett

424'^ Judicial District

Burnet County Courthouse Annex (North)

1701 East Polk St., Suite 74

Burnet, TX 78611

State/Appellee

Blake Ewing (Pre-Trial and Trial Counsel) Assistant District Attorney (former)

P. O. Box 725

Llano, Texas 78643

(325) 247-5755

State Bar N o. 24076376 Richard S. Crowther (Pre-Trial and Trial Counsel) Assistant District Attorney (former)

1701 E. Polk St., Suite 24

Burnet, TX 78611

(512) 756-5449

State Bar N o. 05174200

Gary W. Bunyard (Appellate Counsel) Assistant District Attorney

P. O. Box 725

Llano, Texas 78643

(325) 247-5755

State Bar N o. 03353500

g.bunyard@co.llano.tx.us

Appellant

Richard D. Davis (Pre-Trial and Trial Counsel) P.O. Box 398

Burnet, Texas 78611

(512)756-5117

State Bar N o. 05537100 Barton Joseph Vana (Trial Counsel) 101 Highway 281 N o r t h, Suite 205C

Marble Falls, Texas 78654

(830)385-2694

State Bar N o. 24084441 Alice Price (Appellate Counsel) Attorney at Law

408 South Liveoak

Lampasas, Texas 76550

State Bar N o. 00786177

Stephanie Maie Heintzleman (Appellant) T D CJ N o. 01984380

SID N o. 50365208

William P. Hobby U n it

742 FM 712

M a r l i n , TK 76661

Table Of Contents

Page Index of Authorities v

Statement of the Case 1

Statement on Oral Argument 1

Response to Issues Presented 2

Statement of the Facts 3

Summary of the Argument - Issue N o. 1 5

There are sufficient affirmative links between Appellant and the contraband to support a conviction for Possession of a Controlled Substance, Penalty Group 1 -

Methamphetamine, In An Amount of One Gram or More But Less Than Four Grams W i th Intent to Deliver.

Argument on Issue N o. 1

1.1 Principals of Law 6 1.2 Applicable Facts 9 13 Discussion and Conclusion 10 Prayer for Relief. 14

Certificate of Word Count 15

Certificate of Service

Index Of Authorities

Case Law Page

Brooks V. State, 323 S.W.3d 893 (Tex. C r i m. App. 2010)

Cedano v. State, 24 S.W.3d 406,411 (Tex. App.—

Houston [1st Dist.] 2000, no pet.)

Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—

Houston [1st Dist.] 1989, pet. ref d) 8 Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m. App. 1974) 6

Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref d) 8 Hernandez v. State, 538 S.W.2d 127 (Tex. C r i m. App. 1976). 6

Jackson V. Virginia, 443 U.S. 307; 99 S. Ct. 2781;

61 L. Ed. 2d 560 (1979) 6 Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m. App. 1983) 7

Lafoon v. State, 543 S.W.2d 617 (Tex. C r i m. App. 1976) 6

Washington v. State, 902 S.W.2d 649, 652 (Tex. App.—

Houston [14th D i s t] 1995, pet. ref d)

Constitutions

None cited

Statutes/Rules

Tex. Penal Code § 1.07 (39)

Tex. Penal Code § 6.01 (b)

Tex Penal Code § 7.02 (a)(2)

Treatises/Publications

None cited

statement Of The Case Appellant has reasonably stated the Statement of the Case.

Statement on Oral Argument The undersigned waives Oral Argument. The undersigned does not believe that Oral Argument w i ll be beneficial for this case for the reason that the issues contain

complex nuances and the Appellant has waived Oral Argument as well. In such

event that this Court should believe that Oral Argument would assist the Court, the

undersigned w i ll gladly participate.

R e s p o n se to I s s u es Presented Issue N o. One: There are sufficient affirmative links between Appellant and the contraband to support a conviction for Possession of a Controlled Substance, Penalty Group 1 - Methamphetamine, In An Amount of One Gram or More But Less Than Four Grams W i th Intent to Deliver.

statement Of TIte Facts Appellant has not adequately described the Statement of the Facts.

On February 15, 2014, Granite Shoals Police Officer Robert Chrane conducted a traffic stop on a 1998 Pontiac Grand Am w i t h in Granite Shoals, Texas. RR

Vol. 3 Pages 95 - 96. The vehicle was being operated by Grant Cole. RR Vol. 3

Page 97. Appellant was the passenger and the owner of the vehicle. RR Vol. 3

Pages 9 8 , 1 0 9- 112.

The operator, Grant Cole, was arrested for outstanding warrants, RR Vol. 3 Page 97. Granite Shoals Sergeant Chris Decker made contact w i th Appellant and

determined that the majority of the contents of the vehicle belonged to Appellant.

RR Vol. 3 Pages 109 - 112. Sergeant Decker asked Appellant for consent to search

the vehicle and Appellant granted this request. RR Vol. 3 Page 114.

In a bag that was located between Appellant's leg and the center console, Sergeant Decker found a soda straw that had been modified in a way that it could be used for

ingesting powder-like substances. RR Vol. 3 Page 116. Inside the straw was a

powdery residue. RR Vol. 3 Page 116. Also inside this bag were two glass pipes,

one containing suspected methamphetamine and the other containing marihuana.

RR Vol. 3 Page 118. Also located in this bag were female items such as sunglasses

and makeup, things of that nature. RR Vol. 3 Page 116, 161.

In a "cheetah print" bag located in the passenger compartment of the vehicle.

Sergeant Decker found plastic baggies containing numerous small babies w i th clear

crystal substance inside. RR Vol. 3 Page 121. These were jeweler-style baggies,

small zip-style babies, w i t h in a larger jewelry-style baggie as well as a $50 bill and

$1 bill inside that drawstring pouch w i th both of the bills contained crystalized

substance on the surface of what obviously under the flashlight of having some sort

of crystallized substance on them. RR Vol. 3 Pages 121 - 122, 125 - 126. This bag

was observed by Sergeant Decker to originally be located underneath Appellant's

legs in front of the passenger seat. RR Vol. 3 Page 121,152, 160 - 161.

Officer Chrane, while assisting w i th the search, found in the center console a glass pipe w i th a bowl at the end that contained powdered residue that was believed

to be methamphetamine. RR Vol. 3 Page 99.

The suspected methamphetamine was tested at the DPS Crime Lab and determined to contain 3.52 grams of methamphetamine. RR Vol. 4 Pages 16 - 19.

Summary Of The Argument on Issue No, 1 There are sufRcient affirmative links between Appellant and the contraband to support a conviction for Possession of a Controlled Substance, Penalty Group 1 - Methamphetamine, In An Amount of One Gram or More But Less Than Four Grams With Intent to Deliver.

Appellant argues that there is no evidence of an affirmative link or connection between Appellant and the contraband under the "Link Doctrine". Appellee asserts

that there is ample circumstantial evidence to support the jury's verdict that

Appellant is Guilty of this offense.

Argument On Issue No, i 1.1 Principals of Law

On the question of sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319; 99 S. Ct. 2781; 61 L. Ed.

2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 900 (Tex. C r i m. App. 2010). This

standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Id. Once a defendant has been found guilty of

the crime charged, the factfinder's role as weigher of the evidence is preserved

through a legal conclusion that upon judicial review all of the evidence is to be

considered in the light most favorable to the prosecution. Id.

The j u ry may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions. Lafoon v.

State, 543 S.W.2d 617 (Tex. C r i m. App. 1976); Hernandez v. State, 538 S.W.2d 127

(Tex. C r i m. App. 1976); Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m. App. 1974).

The term "possession" means actual care, custody, and control. Tex. Penal Code § 1.07 (39).

Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his/her control of the thing for a sufficient time to

permit him/her to terminate his/her control. Tex. Penal Code § 6.01 (b).

A person is criminally responsible for an offense committed by the conduct of another if:

(2) acting w i th intent to promote or assist the commission of the offense, he/she solicits, encourages, directs, aid, or attempts to aid the other person to commit the offense.

Tex Penal Code § 7.02 (a)(2).

W h en the accused is not in exclusive possession of the place where the contraband is found, the State must show additional affirmative links between the

accused and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex.

App.—Houston [1st Dist.] 2000, no pet.). An affirmative link generates a

reasonable inference that the accused knew of the contraband's existence and

exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m. App.

1983).

Some relevant factors that may affirmatively link an accused to contraband include: (1) the defendant's presence when a search is conducted; (2) whether the

contraband was in plain view, (3) the defendant's proximity to and the accessibility

of the narcotic; (4) whether the defendant was under the influence of narcotics when

arrested; (5) whether the defendant possessed other contraband or narcotics when

arrested; (6) whether the defendant made incriminating statements when arrested;

(7) whether the defendant attempted to flee; (8) whether the defendant made furtive

gestures; (9) whether there was an odor of contraband; (10) whether other

contraband or drug paraphernalia were present; (11) whether the defendant owned

or had the right to possess the place where the drugs were found; (12) whether the

place where the drugs were found was enclosed; (13) whether the defendant was

found w i th a large amount of cash; and (14) whether the conduct of the defendant

indicated a consciousness of guilt. Washington v. State, 902 S.W.2d 649, 652 (Tex.

App.—Houston [14th Dist.] 1995, pet. refd); Chavez v. State, 769 S.W.2d 284,

288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. refd). The number of linking

factors present is not as important as the "logical force" they create to prove the crime

was committed. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st

Dist.] 1994, pet. refd).

12 Applicable Facts

Appellant was the passenger and the owner of the vehicle at the time of the traffic stop. RR V o l. 3 Pages 98,109 - 112. Appellant told officers that the majority of the

personal items in her vehicle belonged to her. RR Vol. 3 Pages 109 - 112. The

only other occupant in the vehicle. Grant Cole, testified at trial that all of the bags

which contained narcotics entered into evidence belonged to h im despite the fact

that they were "girlie" in nature. RR Vol. 4 Page 26.

After denying that contraband is present in the vehicle. Appellant gave consent for the officers to search Appellant's vehicle and belongings. RR Vol. 3 Page 114.

In a bag that Sergeant Decker had observed was under Appellant's legs in front of the passenger seat while Appellant was still in the vehicle, officers found the 3.52

grams of methamphetamine that is the subject of this prosecution together w i th

drug paraphernalia. RR Vol. 3 Page 121, 152, 160 - 161; Vol. 4 Page 17.

Located in a second bag which was observed to also be in the front passenger compartment and was situated between Appellant's leg and the center console was

various items of drug paraphernalia and female items. RR Vol. 3 Page 116, 118,

161.

At trial the driver of the vehicle, Grant Cole, testified that the narcotics and the meth pipe all belonged to h im and that Appellant had no knowledge of the items.

RR V o l. 4 Pages 24 - 26. Cole testified that when the officer turned on his lights,

Cole removed the drugs from his pants pocket and put them in a pouch/bag in the

back seat without Appellant's knowledge. RR V o l. 4 Pages 24 - 25, 40.

On cross-examination. Cole acknowledged that Appellant was w i th Cole when Cole purchased methamphetamine on a different occasion as well as the

methamphetamine that is the subject of this case. RR Vol. 4 Pages 29 - 30, 38.

IJ Discussion and Conclusion

In this case virtually the total argument of Appellant is a loose comparison of the facts before the j u ry to each of the non-exclusive factors to consider in determining

possession. When referring to several of the factors Appellant at times modified the

description of the factor.

One significant point in Appellant's argument is concerning the factor of consideration as to whether or not the accused the owner of the premises.

Appellant's argument is that this case involved an automobile meaning that it was

not a premise that qualifies for consideration. Whether they may or may not be

technically called premises. Appellant was the acknowledged owner of the vehicle

and of the bag in which the narcotics were found. Again, the list of factors is non

exclusive and there is no authority that the factfinder can not consider ownership of

items capable of containing contraband inside the items in the same way that a

residence is considered as premises.

Another factor argued by Appellant is that the narcotics were found in different bags distributed throughout the vehicle and therefore not accessible to Appellant.

Yet a close review of the record shows that the narcotics which are the subject of this

prosecution were in fact located in one single, unlocked bag that was underneath

Appellant's legs in the front passenger portion of the vehicle. By having this bag

positioned between her legs and the seat, as opposed to be jumbled in w i th all of the

other bags in the back seat area, a rational j u ry could infer this to be an affirmative

act of security on the part of Appellant as well as a demonstration that the bag and

its contents were more important to Appellant than the other bags. One other bag

located between Appellant's leg and the center console contained paraphernalia w i th

residue that was not tested by the laboratory and other paraphernalia w i th untested

residue was found in the center console.

Appellant next argues that because the paraphernalia was not in plain sight it was not "near" Appellant- The bulk of the paraphernalia was in the two unlocked bags,

which Appellant acknowledged to officers belonged to her and were both located by

Appellant's legs, one under the legs and one next to the legs, again an act a rational

j u ry could find to be a demonstration of importance and security. The remaining

paraphernalia was inside the center console compartment which was in Appellant's

car and next to Appellant's seat.

Appellant also argues that no bag was linked as Appellant's sole property. Yet Appellant told the officers at the beginning of the stop that the majority of the bags

belonged to her. At trial Appellant's only witness. Grant Cole, testified that he

owned all of the "girlie" bags in which the narcotics were located yet he also testified

that the bag in which he hurriedly put the narcotics and the meth pipe was in the

rear portion of the passenger compartment. Under this record it was quite

reasonable for the j u ry to resolve this conflict in favor of conviction.

Also before the j u ry was Cole's acknowledgment that Appellant was w i th Cole on two occasions when Cole purchased methamphetamine. Once when Cole was

arrested for that possession and the other time when Cole purchased the

methamphetamine that is the subject of this prosecution. A rational j u ry could infer

from this evidence that Appellant allowed Cole to place his narcotics in her bag

located beneath her legs and was thereby acting w i th intent to promote or assist Cole

in the commission of the crime by aiding or assisting h im in hiding and transporting

the narcotics, if Appellant was not outright in exclusive possession of the narcotics.

Even if the evidence presented through the testimony of Grant Cole could inferentially raise an issue as to whether Appellant's possession or control of the

narcotics was involuntary, Appellant could have, from the outset, informed Sergeant

Decker that Cole had put drugs in the bag in front of her seat which would be an act

of termination of the possession or control as contemplated in Tex. Penal Code §

6.01 (b). However she did not do so which demonstrated the voluntariness of her

possession and control of the narcotics.

Considering all of these facts which were before this jury, it is reasonable to conclude that the j u ry resolved all conflicts in the testimony, weighed the evidence,

and drew reasonable inferences from basic facts to ultimate facts in rendering a

verdict of Guilty. For these reasons the relief being requested by Appellant should

be denied and the judgment of conviction and sentenced entered in this cause be

affirmed.

PRAYER FOR R E L I EF WHEREFORE, PREMISES C O N S I D E R E D, Appellee prays the Court deny the relief requested by Appellant and affirm the judgment of conviction and sentence

entered against Appellant.

Respectfully submitted, OFFICE OF D I S T R I CT A T T O R N EY 33^^ and 424'^ J U D I C I AL D I S T R I C TS Wiley B. McAfee, District Attorney P. O. Box 725

Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 Assistant District Attorney State Bar N o. 03353500 g. bunyard @ CO. 1 lano .tx. us

A T T O R N EY F OR APPELLEE *21 C E R T I F I C A TE OF WORD C O U NT This is to certify that the pertinent portion of this brief contains 2,247 words printed in Aldine401BT 14 font, according to the WordPerfect^" X7 word count

tool.

C E R T I F I C A TE OF SERVICE This is to certify that a true copy of the above and foregoing instrument, together w i th this proof of service hereof, has been forwarded on the 3rd day of December

2015, to Alice Price, Attorney for Appellant, by email and by EServe.

Assistant District Attorney