Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 6/21/2017 2:36:12 PM VIVIAN LONG CLERK *1 ACCEPTED 071600465CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/21/2017 2:36 PM Vivian Long, Clerk
NO. 07-16-00465-CR, NO. 07-16-00466-CR NO. 07-16-00467-CR, 07-16-00468-CR IN THE COURT OF APPEALS FOR THE SEVENTH SUPREME JUDICIAL DISTRICT AT AMARILLO, TEXAS
ALEXANDER ELI MARTINEZ, Appellant VS.
THE STATE OF TEXAS,
Appellee Appeal in Cause No. 2900
In the 287 th District Court
of Bailey County, Texas
APPELLEE’S BRIEF HON. KATHRYN GURLEY
DISTRICT ATTORNEY FOR BAILEY COUNTY ATTORNEY FOR THE STATE P.O. BOX 729
Friona, Texas 79035
State Bar No. 10022700
Telephone No. 806.250.2050
FAX No. 806.250.9053 Email: districtattorney@parmercounty.net JULIE GOEN PANGER
ATTORNEY FOR THE APPELLANT 619 Broadway Street
Lubbock, Texas 79401
State Bar No. 24069793
Telephone No. 806.712.2889
FAX No. 806.712.2529 Email: julie@thelubbocklawyer.com Oral Argument Not Requested
NO. 07-16-00465-CR, NO. 07-16-00466-CR NO. 07-16-00467-CR, 07-16-00468-CR ALEXANDER ELI MARTINEZ, Appellant VS.
THE STATE OF TEXAS,
Appellee NAMES OF ALL PARTIES
JUDGE PRESIDING:
HON. GORDON HOUSTON GREEN
287 TH Judicial District Court
300 South 1 st Street, Suite 130
Muleshoe, TX 79347
APPELLANT:
Alexander Eli Martinez
TDCJ#02094168
Lychner Unit
Humble, TX 77396
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT
AT TRIAL: ON APPEAL:
David Martinez Julie Goen Panger
1663 Broadway Street 619 Broadway Street
Lubbock, TX 79401 Lubbock, TX 79401
ATTORNEY FOR STATE
AT TRIAL AND ON APPEAL:
KATHRYN GURLEY
Bailey County District Attorney
P.O. Box 729
Friona, Texas 79035
i
TABLE OF CONTENTS
NAMES OF ALL PARTIES ......................................................................................i
TABLE OF CONTENTS ..........................................................................................ii
INDEX OF AUTHORITIES………………………………………………………iii
STATEMENT OF THE CASE…………………………………….………………2
STATEMENT OF FACTS ……………………………………….…………….....3
SUMMARY OF THE ARGUMENT……………………… ..…………………..…7
RESPONSE TO APPELLANT’S SOLE POINT OF ERROR .................................9
I. Standard of Review ....................................................................................9 II. Discussion. ...............................................................................................10 (1) Affirmative Links Rule .......................................................................12 (2) Application of Legal Sufficiency Standards to Facts of this case ...............................................................................................14 (3) Conclusion ..........................................................................................18 CONCLUSION AND PRAYER .............................................................................19
CERTIFICATE OF SERVICE................................................................................20
CERTIFICATE OF COMPLIANCE.......................................................................20
ii
INDEX OF AUTHORITIES
TEXAS CASE LAW Page
Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014).........................................9
Bigby v. State , 892 S.W.2d 864 (Tex. Crim. App. 1994) ........................................16
Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................9
Brown v. State , 270 S.W.3d 564 (Tex. Crim. App. 2008),
cert. denied , 556 U.S.1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009)..................10
Clayton v. State , 235 S.W.3d 772 (Tex. Crim. App. 2007)...............................10, 16
Evans v. State , 202 S.W.3d 158 (Tex. Crim. App. 2006)............................12, 13, 14
Hooper v. State, 214 S.W. 3d 9 (Tex. Crim. App. 2007) ..........................................9
Jackson v. Virginia , 443 U.S. 307 (1979) ...........................................................9, 10
King v. State , 29 S.W.3d 556 (Tex. Crim. App. 2000)..............................................9
Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................10
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................................12
Whittington v. State, 580 S.W.2d 845 (Tex. Crim. App. 1989)
cert. denied , 494 U.S. 1039 (1990)..........................................................................16
Wise v. State , 364 S.W.3d 900 (Tex. Crim. App. 2012)..........................................10
Wyatt v. State , 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................10
TEXAS RULES AND STATUTES
T EX . H EALTH & S AFETY C ODE A NN . §481.112(a), (d) ............................................11
iii *5 NO. 07-16-00465-CR, NO. 07-16-00466-CR NO. 07-16-00467-CR, 07-16-00468-CR IN THE COURT OF APPEALS FOR THE SEVENTH SUPREME JUDICIAL DISTRICT AT AMARILLO, TEXAS
ALEXANDER ELI MARTINEZ, Appellant VS.
THE STATE OF TEXAS,
Appellee STATE'S APPELLATE BRIEF __________________________________________________________________
The State does not request oral argument.
TO THE HONORABLE COURT OF APPEALS:
COMES NOW THE STATE OF TEXAS, Appellee in Cause No. 2900 of the 287 th Judicial District Court of Bailey County, Texas, and respectfully submits
this brief in response to the brief filed by the Appellant appealing his convictions
in Cause Number 2900 in the 287 th Judicial District Court, and in support thereof,
would respectfully show as follows:
STATEMENT OF THE CASE In an indictment filed on October 7, 2015, the Grand Jury for the 287 th Judicial District Court of Bailey County, Texas, indicted the Appellant, Alexander
Eli Martinez, on four counts:
Count I – Possession with Intent to Deliver a Controlled Substance, namely cocaine, in an amount of four grams or more but less than 200 grams
Count II – Possession with Intent to Deliver a Controlled Substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams
Count III – Possession of Marijuana, in an amount of five pounds or less but more than four ounces
Count IV – Possession of a Controlled Substance, namely methamphetamine, in an amount of one gram or more but less than four grams.
(CR 5-6) A jury trial was held beginning September 27, 2016, where Martinez pleaded “not guilty” before the jury. (RR vol. 2, pg. 10-11). On September 28,
2016, the jury found Martinez “guilty” on all four counts. (RR vol. 5, pg. 42). On
Counts I, II, and IV, the jury assessed punishment at five years confinement in the
Institutional Division of the Texas Department of Criminal Justice and
recommended that the imposition of sentence be suspended. In Count III, the jury
assessed punishment at two years confinement in the State Jail Division of the
Texas Department of Criminal Justice. This sentence was imposed. The district
court certified Martinez’ right to appeal. (CR pp. 44-45) (RR vol. 5 pg. 48).
Appellant timely filed a notice of appeal. (CR pg. 69).
STATEMENT OF FACTS
An investigation into the distribution of narcotics from 301 East Chicago, Muleshoe, Texas, began in September of 2014. (RR vol. 3 pg 35). The residence
had been placed under surveillance, and a confidential informant was utilized. (RR
vol. 3 pp. 35, 83). It was determined that Alexander “Taz” Martinez and his wife
resided at that address. (RR vol. 3 pp. 35-36). Based upon the information
obtained during the surveillance, which included witnessing a confidential
informant making purchases of cocaine from the Appellant, Officer Murillo
believed he had probable cause to obtain a search warrant. (RR vol. 6 pg. 6).
Judge Redwine issued the search warrant, and the warrant was executed on
December 4, 2014, at the residence located at 301 East Chicago in Muleshoe,
Texas. (RR vol. 3 pp. 36-39; RR vol. 6 pg. 6).
Cristal Quintanilla and Selena had been at the Appellant’s residence prior to the arrival of the police in a Dodge Nitro registered to “Dakota”. (RR vol. 3 pp.
126-127). They picked up two friends there, namely Shayla and “Pee Wee”, aka
Zedrick. Id. As they were leaving the residence, Cristal saw the police headed in
the direction of Appellant’s house, so she turned around and went back to
Appellant’s house to tell them they had seen “the cops”. (RR vol. 3 pg. 130).
Cristal remembered people running everywhere, and that Appellant and B.J. got
into her vehicle. (RR vol. 3 pp. 131-132). Cristal testified about where each
person was seated and indicated each person’s place on a diagram. Selena was in
the front passenger seat. Pee Wee was seated directly behind her. B.J. was seated
in the center of the back seat, and Shayla was seated directly behind the front seat
passenger. Appellant was sitting on B.J.’s lap, in the center of the back seat. (RR
vol. 3 pp. 132-133; RR vol. 6 pg. 28).
When law enforcement arrived at the residence, the black Dodge Nitro was seen in the carport with the reverse lights on as if the driver was about to back out.
(RR vol. 3 pp. 20, 39, 133-134). Six people were inside the vehicle – four in the
back and two in the front. (RR vol. 3 pg. 20). Appellant was one of the
individuals in the back seat of the vehicle, seated in the middle behind the center
console. (RR vol. 3 pp. 20 - 21, 25, 112, 118) . Officer Andrade made eye contact
with Appellant and saw him “reaching down”. (RR vol. 3 pg. 118). Officer Parks
asked everyone to get out of the vehicle, had them line up against a fence, and
began getting names and dates of birth from the individuals. (RR vol. 3 pp. 20-21).
While this was taking place, Appellant “took off running”. (RR vol. 3 pg. 21).
Officer Parks ordered him to stop three times, and when Appellant failed to stop,
Officer Parks unholstered his Taser. Appellant was chased approximately fifty
yards in the street, and then Officer Parks fired the Taser at Appellant. Officer
Parks missed his target. (RR vol. 3 pp. 23, 113-14). However, after the Taser was
deployed, Appellant laid down in the street and was placed in handcuffs. (RR vol.
3 pp. 23-24).
Appellant was taken inside his residence, where he was searched. His wallet (containing cash) and his cell phone were taken. (RR vol. 3 pg. 42). The wallet
was later found to contain $1,215.00. (RR vol. 3 pg. 55). One of the $100 bills
found in Appellant’s wallet was shown to have the same serial number as a $100
bill that law enforcement had previously given to a confidential informant to
purchase cocaine from Appellant. (RR vol. 3 pp. 60-61; RR vol. 6 pp. 16-17).
The residence was searched. In the master bedroom, a handgun was found in a dresser drawer and a rifle was found hidden in a hole in the closet wall. (RR
vol. 3 pp. 43-44; RR vol. 6 pp. 7, 9, 10). Seven glass pipes, a clear plastic baggie
of methamphetamine, and two “bricks” of marijuana were also found in the
dresser. (RR vol. 3 pg. 44, 74; RR vol. 6 pg. 8, 11, 12, 18,19, 21, 22). After being
read the Miranda warnings, Appellant admitted that everything in the house was
his. (RR vol. 3 pp. 41-42, 50, 53-54, 77-78, 155).
The black Dodge Nitro that was stopped in the driveway of the residence was searched. Chief Deputy Dominguez found a plastic bag that contained several
other plastic baggies in the pocket located on the back of the driver’s seat. (RR
vol. 3 pg. 92; RR vol. 6 pp. 23-24). The contents of some of the baggies were field
tested and were found to be positive for cocaine. (RR vol. 3 pg. 93).
The baggies were sent to the Texas Department of Public Safety Crime Laboratory for analysis. The results of testing showed the contents of each of the
six baggies. One baggie contained 18.09 grams of cocaine, two baggies were
found to contain no controlled substances, one baggie contained 3.5 grams of
cocaine, one baggie contained 1.75 grams of methamphetamine, and one baggie
contained 48.73 grams of methamphetamine. (RR vol. 3 pp. 69, 74-75; RR vol. 6
pg. 22). Chief Geske testified that these quantities of methamphetamine and of
cocaine would indicate that someone was selling those drugs. (RR vol. 3 pg. 152).
Cristal Quintanilla came to the Sheriff’s office shortly after the search was done at Appellant’s home, and she spoke with Chief Deputy Dominguez. (RR vol.
3 pp. 137, 157). Cristal testified about a Snapchat video that she had on her cell
phone. Cristal explained that Snapchat allows you take videos or photographs that
are a few seconds long and that you can send them to your friends. (RR vol. 3 pg.
137). Until recently, the videos and pictures were not able to be “saved” and they
“go away” after 24 hours has passed. (RR vol. 3 pp. 137, 141). Cristal testified
about a Snapchat from Appellant that had been posted on December 4, 2014. She
showed Deputy Dominguez the video and allowed him to make a recording of it.
(RR vol. 3 pp. 138-139). The Snapchat video was played for the jury, and Cristal
identified Appellant as being the person who appeared in the video. (RR vol. 3 pg.
141). In the short video, Appellant clearly says “Does the b**** want some pure
cocaine or not”, repeats that statement again, and talks about counting some
money. (RR vol. 3 pp. 140-141; RR vol. 6 pg. 31).
The jury found Appellant guilty on all four counts as alleged in the indictment. (RR vol. 4 pg. 42; CR pp. 32, 34, 37, 38). Appellant was sentenced
on Counts I, II, and IV to five years in the Institutional Division of the Texas
Department of Criminal Justice, with those sentences suspended for five years, and
sentenced on Count III to two years confinement in the State Jail Division of the
Texas Department of Criminal Justice. (RR vol. 4 pg. 42; CR pp.61-68).
SUMMARY OF THE ARGUMENT Appellant contends that the evidence is insufficient to support his conviction in Counts I and II of the indictment, alleging the evidence was insufficient to prove
that Appellant possessed cocaine or methamphetamine . (Appellant’s Brief, pg. vi).
Specifically, Appellant argues the State failed to prove beyond a reasonable doubt
that the cocaine and methamphetamine were in Appellant’s custody, care, control,
or management in light of the multiple individuals who had access to the drugs.
(Appellant’s Brief, pg. 4).
Sufficient evidence supports the Appellant’s convictions on Count I and Count II of the indictment. The evidence at trial showed numerous affirmative
links between the Appellant and the controlled substances, which establish
Appellant’s possession of the controlled substances. The State established, to the
requisite level of confidence, that the Appellant’s connection to the controlled
substances was more than just fortuitous, and a rational juror could have found that
the Appellant possessed the controlled substances.
Appellant argued at trial and now argues in this appeal that he did not possess the methamphetamine and cocaine found in the vehicle. In this case, the
jury was the finder of fact, and as such, was the sole judge of the credibility of the
witnesses and the weight to be given their testimony. At trial, the jury heard all of
the evidence, including a video wherein Appellant denied the drugs found in the
car were his. They heard the cross-examination of the law enforcement officers
and witnesses presented at trial. The evidence, when viewed in the light most
favorable to the verdict, demonstrates that a rational trier of fact could have found
the State proved, beyond a reasonable doubt, the element that Appellant
challenges, to wit: that Appellant possessed methamphetamine and that Appellant
possessed cocaine with the intent to deliver. Accordingly, the Court should
overrule Appellant’s sole point of error.
RESPONSE TO APPELLANT’S SOLE POINT OF ERROR
Standard of Review
The standard of review for a sufficiency analysis 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 (1979); Brooks v. State , 323 S.W.3d 893,
902 (Tex. Crim. App. 2010). The 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.” Jackson at
319, 99 S.Ct. at 2789.
Evidence can be legally sufficient for a conviction even if it is entirely circumstantial. King v. State , 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The
same standard of review is used for both circumstantial and direct evidence cases.
Hooper v. State, 214 S.W. 3d 9, 13 (Tex. Crim. App. 2007). It is not necessary
that every fact point directly and independently to the defendant’s guilt; it is
enough if the conclusion is warranted by the combined and cumulative force of all
the incriminating circumstances. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim.
App. 2014). If the evidence supports conflicting inferences, a reviewing court
should “presume the factfinder resolved the conflicts in favor of the prosecution,”
because the factfinder “exclusively determines the weight and credibility of
evidence.” Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012, quoting
Jackson, supra at 319-26). The State need not have disproved all reasonable
alternative hypotheses inconsistent with a defendant‘s guilt; rather, the verdict
should be affirmed if “the inferences necessary to establish guilt are reasonable
based upon the cumulative force of all the evidence when considered in the light
most favorable to the verdict.” ( Wise, supra at 903).
The jury as fact finder is the sole judge of the weight and credibility of the evidence presented, and is free to believe or disbelieve any testimony. Brown v.
State , 270 S.W.3d 564,568 (Tex. Crim. App. 2008), cert. denied , 556 U.S.1211,
129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009); Wyatt v. State , 23 S.W.3d 18, 30 (Tex.
Crim. App. 2000). The presumption is that the jury resolved conflicting inferences
in favor of the verdict, and a reviewing court should defer to that determination.
Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). So long as the
verdict is supported by a reasonable inference, it is within the jury’s province to
choose which inference is most reasonable. Laster v. State , 275 S.W.3d 512, 523-
24 (Tex. Crim. App. 2009).
Discussion
Appellant appeals only two of the four counts wherein he was convicted by a jury. In the two counts the subject of this appeal, Appellant was charged with and
convicted of two counts of the offense of possession of a controlled substance,
Penalty Group 1, with intent to deliver, in an amount of four grams or more but
less than 200 grams. The indictment alleged that Appellant:
Count I: on or about the 4th day of December, 2014, did then and there knowingly possess with intent to deliver, a controlled substance, namely, cocaine, in an amount of four grams or more but less than 200 grams. Count II: on or about the 4th day of December, 2014, did then and there knowingly possess with intent to deliver, a controlled substance, namely, methamphetamine, in an amount of four grams or more but less than 200 grams.
(CR pg. 5-6)(RR vol. 3 pg. 10-11).
The elements of the offense—as pled—are that (1) a person (2) knowingly (3)
possesses (4) with intent to deliver (5) a controlled substance listed in Penalty
Group 1 (6) in an amount of between four grams or more but less than 200 grams.
See T EX . H EALTH & S AFETY C ODE A NN . §481.112(a), (d).
Appellant’s sufficiency challenges focus on whether the evidence is sufficient to show that any rational trier of fact could have found beyond a
reasonable doubt that Appellant knowingly possessed cocaine or that Appellant
knowing possessed methamphetamine, with the intent to deliver, in amounts
between four and 200 grams. In particular, he makes the same argument that was
made at trial, to wit: that the evidence was insufficient to connect the Appellant to
the drugs found in the vehicle. As such, the State was required to prove that (1)
Appellant exercised control, management, or care over the 21.59 grams of cocaine
and the 50.48 grams of methamphetamine. Whether by direct evidence or
circumstantial evidence, the State was also required to establish “to the requisite
level of confidence, that the accused’s connection with the drug was more than just
fortuitous. This is the “affirmative links” rule. Poindexter v. State, 153 S.W.3d
402, 405-06 (Tex. Crim. App. 2005).
The “affirmative links” rule is designed to protect the innocent bystander from conviction merely because of his fortuitous proximity to someone else’s
drugs. Mere presence at the location where drugs are found is thus insufficient, by
itself, to establish actual care, custody, or control of those drugs. However,
presence or proximity, when combined with other evidence, either direct or
circumstantial (e.g., ‘links’), may well be sufficient to establish that element
beyond a reasonable doubt.” Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim.
App. 2006).
The Evans court gave a non-exclusive list of possible “affirmative links” that Texas courts have recognized as sufficient, either singly or in combination, to
establish a person’s possession of contraband:
(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 with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans , 202 S.W.3d at 162, n. 12. The Evans court noted, however, that the factors noted in the footnote are simply factors which may circumstantially
establish the possession element of the offense and are not a litmus test. Id. The
Evans court also noted that it is not the number of links that is dispositive, but
rather the logical force of all the evidence, both direct and circumstantial. Id.
Whether the possession element is met should be judged by the same standard as
all other evidence since the “affirmative links” rule is not an independent test of
legal sufficiency. Id. at 161, n. 9.
Application of Legal Sufficiency Standard to Facts of Case The Evans court framed an “affirmative links” sufficiency challenge as “whether there is evidence of circumstances, in addition to mere presence, that
would adequately justify the conclusion that the defendant knowingly possessed
the substance.” Id. at 161, n. 9. The evidence presented at Appellant’s trial was
sufficient to link him to the methamphetamine and the cocaine found in the pocket
behind the driver’s seat.
The first affirmative link is that the Appellant was present when the search was conducted. The Appellant resided at the address of the search, and he was on
the premises, inside the vehicle located in his driveway, when the search warrant
was executed. (RR vol. 3 pp. 21, 40, 112, 118).
The next link between Appellant, the methamphetamine, and the cocaine found in the vehicle is Appellant’s proximity to that contraband. Appellant was
seated in the lap of another person in the center of the back seat. (RR vol. 3
pp.112, 132; RR vol. 6 pg. 28). Appellant was seated within arm’s reach of the
pocket where the contraband was found. Appellant argues that there were at least
five people in the vehicle similarly situated to Appellant. (Appellant’s Brief pg. 9).
The five others in the vehicle, however, were not similarly situated to the
Appellant. Four of the individuals found in the vehicle– Cristal, Selena, Shayla
and Pee Wee – had previously left Appellant’s residence, but when they saw the
police headed that direction, they returned to Appellant’s residence to warn people
there that the police were coming. (RR vol. 3 pg. 130). If anyone in the car had
knowledge of the substantial quantity of drugs in the vehicle at that time, it would
not be rational that they would return to the scene with the drugs in light of the
expected presence of law enforcement. Upon the vehicle’s arrival at Appellant’s
residence, Appellant and B.J. jumped in the car and were seated in the middle seat
behind the driver, with Appellant seated on B.J.’s lap. (RR vol. 3 pp. 131-132).
This arrangement would likely preclude the person to Appellant’s right (Shayla)
and the person Appellant was sitting on (B.J.) from being able to reach the pocket
to place the drugs there. The two people seated in the front seat (Cristal and
Selena) could not easily reach the pocket behind the driver’s seat. There were only
two persons, therefore, namely the Appellant and the person seated to his left (Pee
Wee), who had access to the pocket. Pee Wee is one of the passengers who was in
the car when it returned to the Appellant’s residence. If he had placed the drugs in
the pocket, it would not be likely that he would return to Appellant’s residence
with the contraband, knowing the police were headed that way. There are,
however additional links to connect the Appellant with the contraband found in the
pocket of the vehicle.
Another strong link between Appellant and the methamphetamine and cocaine within the pocket is the fact Appellant made furtive gestures. Appellant
was seen “reaching down” behind the driver’s seat as the officers arrived at the
scene. Officer Andrade described looking right at Appellant as he was making
those movements. (RR vol. 3 pg. 118).
Appellant’s flight from the scene, leading to a foot chase and law enforcement’s deployment of a Taser, also links Appellant to the contraband.
Appellant ignored commands to stop and only ceased running when he heard the
taser deploy. (RR vol. 3 pg. 23). Appellant ran before any contraband was found
in the vehicle, and he was the only person who fled from the vehicle where the
contraband was located. Thus, the fact that Appellant fled the scene before the
vehicle had even been searched indicated he knew there was contraband in the
vehicle. Appellant’s flight from the scene indicates a consciousness of guilt and is
a circumstance from which an inference of guilt may be drawn. Bigby v. State , 892
S.W.2d 864, 883 (Tex. Crim. App. 1994); Whittington v. State, 580 S.W.2d 845,
846-847 (Tex. Crim. App. 1989), cert. denied , 494 U.S. 1039 (1990); Clayton v.
State , 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
Other affirmative links include Appellant’s incriminating statements made when arrested. Appellant admitted to possessing the 1.63 grams of
methamphetamine and the 1.98 pounds of marijuana that were found inside his
residence. (RR vol. 3 pg. 50; RR vol. 6 pg. 14). The amount of these drugs,
especially the marijuana, is more consistent with delivery than personal use.
Multiple glass pipes commonly used for smoking methamphetamine were present
in Appellant’s home, which Appellant also admitted were his. Additionally, a
handgun and a rifle were found concealed in the Appellant’s bedroom. (RR vol. 3
pg. 44). These items link the Appellant to the business of selling narcotics.
Another link connecting the Appellant to the contraband is his possession of a large amount of cash, primarily in the smaller denominations of $5.00, $10.00
and $20.00. Of the cash found in Appellant’s wallet, which was on his person at
the time of detention, one bill was a $100 bill that had been previously used by a
confidential informant to purchase cocaine from Appellant. (RR vol. 3 pg. 42, 55,
60; RR vol. 6 pg. 16).
Finally, Appellant made an incriminating statement that was recorded and shared with his friends via Snapchat. In that video, Appellant is asking if anyone
wants pure cocaine and talks about counting his money. (RR vol. 6 pg. 31). The
Snapchat video was only visible to Appellant’s friends for a twenty-four hour
period, which meant the video was posted very close in time to the time the search
warrant was executed. Large quantities of methamphetamine and cocaine –
amounts consistent with delivery rather than personal use amounts - were found in
the car, indicating that the person who possessed them was in fact a seller of
narcotics. The Snapchat video affirmatively links Appellant to the possession of
and the selling of those substances.
At trial, Appellant argued that there was no evidence whatsoever produced that showed possession. (RR vol. 4 pg. 31). The jury, however, resolved the
conflicting inferences in favor of the verdict and convicted Appellant of Counts I
and II.
Conclusion
The evidence is sufficient to show that Appellant knowingly possessed methamphetamine and that Appellant knowingly possessed cocaine, with the intent
to deliver. The links described above clearly connect the Appellant to the cocaine
and to the methamphetamine found in the vehicle in close proximity to Appellant.
While Appellant argues there was no more than a fortuitous link between
Appellant and the drugs found and that the circumstantial evidence used to convict
Appellant was applicable to the other individuals in the vehicle, the evidence does
not support that conclusion. Appellant alone fled from the vehicle. Appellant
alone possessed other methamphetamine and a substantial amount of marijuana.
Appellant had a substantial amount of cash in his possession, and he alone
possessed a $100 bill connecting him to a previous cocaine sale. Appellant was in
close proximity to the location where the drugs were found. Appellant professed
his possession of pure cocaine in the Snapchat video. These are all factors that
specifically connect only the Appellant, and no other, to the drugs in the vehicle.
The verdict is supported by a reasonable inference, and it is within the jury’s
province to choose which inference is most reasonable. The presumption is that
the jury resolved conflicting inferences in favor of the verdict, and a reviewing
court should defer to that determination.
CONCLUSION AND PRAYER The evidence in this case is sufficient to show the possession element of the offenses charged. When the evidence is examined in the light most favorable to
the verdict, a rational trier of fact could have found beyond a reasonable doubt that
the Appellant possessed methamphetamine and that the Appellant possessed
cocaine, with intent to deliver. WHEREFORE, PREMISES CONSIDERED, the
Appellee prays that this Honorable Court overrule Appellant’s point of error, and
that Appellant's convictions and sentences be upheld and the appeal dismissed.
Respectfully Submitted, By: /s/Kathryn H. Gurley Kathryn H. Gurley 287 th Judicial District Attorney State Bar No. 10022700 P.O. Box 729
Friona, Texas 79035 Tel.: (806) 250-2050 FAX: (806) 250-9053 Email: districtattorney@parmercounty.net *24 CERTIFICATE OF SERVICE
This is to certify that a copy of the above-entitled and numbered brief has been served on Julie Goen Panger, counsel for Appellant as to this appeal, by email
to julie@thelubbocklawyer.com, on this the 21st day of June, 2017.
/s/Kathryn H. Gurley Kathryn H. Gurley Attorney for Appellee CERTIFICATE OF COMPLIANCE Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the word
count of the computer program used to prepare the foregoing State’s Response, this
document contains 3,982 words, inclusive of all portions required by TEX. R.
APP. P. 9.4(i)(1) to be included in calculation of length of the document.
Kathryn H. Gurley 287 th Judicial District Attorney State Bar No. 10022700 By: /s/ Kathryn H. Gurley Kathryn H. Gurley