Muldrow, Johnny Ray ( 2015 )

/ 319 -tS
IN THE
UKi
COURT OF CRIMINAL APPEALS
FOR THE STATE DF TEXAS
AUSTIN, TEXAS
JOHNNY RAY MULDROW
• (Appellant)
NO. PD-1319-15
THE STATE OF TEXAS
(Appellee)
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION OF
THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS RECEIVED
TEXARKANA, TEXAS
COURT OF CRIMINAL APPEALS
IN CAUSE NO. 06-14-00103-CR NOV 13 2015
DISMIS5I0NG APPELLANT'S APPEAL
OF TRIAL CAUSE NO. 25549
AbelAcosta. Clerk
HONORABLE ERIC CLIFFORD, 3UDGE PRESIDING
FROM THE 6TH DISTRICT COURT
lamar county, TEXAS COURT OF CRIMINAL APPEALS
o ic z::5
PETITION FOR DISCRETIONARY REVIEW
Abel Acosta, Clerk
30HNNY RAY MULDROU
TDC3# 193431B
Mark U. Stiles Unit
3060 FM 3514
Beaumont,. TX 77705
Pro Se Representation
TABLE OF CONTENTS
Table of Contents - i
Identity of Parties and Counsel ii
Index of Authorities iii
Statement Regarding Oral Argument 1
Statement of Procedural History 1
Statement of the Case 2
Summary of the Argument
The 5tate failed to establish a sufficient Affirmative Link between
the contraband and Appellant, thus the legal and factual sufficiency
of the evidence was insufficient to sustain a conviction in this case.
Single Ground for Review [restated] .... 2
Standards of Review 3
Argument 4
This Honorable Court Should Grant Review In This Case 10
Conclusion and Prayer for Relief 11
Certificate of Service 12
Appendix 13
A. Memorandum Opinion of the Sixth District Court of Appeals, January 9, 2015,
Johnny Ray Muldrow v. The State of Texas, Cause No. 06-14-00103-CR.
IDENTITY OF PARTIES AND COUNSEL
•A complete list of the names of all interested parties is provided below
so that the members of this Honorable Court may determine whether they are
disqualified to serve or should recuse themselves from participating in the
decision of the case.
Presiding Judge at Trial:
Honorable Eric Clifford, District Court Judge
6th Judicial District Court
Lamar County Courthouse
119 North Main Street
Paris, Texas 754-60
Attorneys for the State at Trial:
Ms. Laurie Pollard, Esq., Assistant District Attorney
- and -
Ms. Denise Hairston, Esq., Assistant District Attorney
District Attorney's Office
Lamar County Courthouse
119 North Main Street
Paris, Texas 75460 . • .
Attorney for the State on Appeal:
Gary D. Young, Esq., District Attorney
District Attorney's Office
Lamar County Courthouse
119 North Main Street
Paris, Texas 75460
Attorney for Defendant at Trial:
Ms. Jennifer Gibo, Esq.
109 1st Street Southwest
Paris, Texas 75460
Attorney for Appellant on Appeal:
Mr. Charles E. Perry, Esq.
1101 Main Street
Commerce, Texas 75429
Appellant:
Johnny Ray Muldrow
Pro Se Representation
TDCJ #1934310
Mark W. Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
li
INDEX OF AUTHORITIES
CASES
AUTRY v STATE, 626 S.W.2d 758 (Tex.Crim.App. 1982) B, 9
BERGER v UNITED STATES, 295 U.S. 78 (1935) 6
BRAZIER v STATE, 748 S.W.2d 505 (Tex.App. - Houston [1st Dist.] 1988) ...... 8
CLEhJIS v STATE, 922 S.W.2d 126 (Tex.Crim.App. 1996) 3
DIXON v STATE, 541 S.U.2d 437 (Tex .Crim.App. 1976) 10
FORD v STATE, 571 S.L).2d 924 (Tex.Crim.App. 197B) 8
HUMA50N v STATE, 728 S.Id.2d 363 (Tex.Crim.App. 1987) 7
HURTADO v STATE, 881 S.td.2d 73B (Tex.App. - Houston [1st Dist.] 1994) 7
JACKSON v VIRGINIA, 433 U.S. 307 (1979) 3
MCGOLDRICK v STATE, 682 S.kl.2d 573 (Tex.Crim.App. 1985) 7
NAPUE v ILLINOIS, 360 U.S. 264 (1959) ••• 6
PAYNE v STATE, 480 S.W.2d 732 (Tex.Crim.App. 1972) 6
PITONYAK; v STATE, 253 S.W.3d 834 (Tex.App. - Austin 200B) 3
POINDEXTER v STATE, 153 S.W.3d 402 (Tex.Crim.App. 2005) '3
SULLIVAN v STATE, 564 S.W.2d 69B (Tex.Crim.App. 1978) 9
ShJINK v STATE, 617 S.W.2d 203 (Tex.Crim.App. 1981) -. 9
U.S. v SMITH, 930 F.2d 1081 (5th Cir. 1991) ••••• 3
LdATSON v STATE, 204 S.W.3d 404 (Tex.Crim.App. 2006) 3
RULES AND CONSTITUTIONAL PROVISION
Texas Rules of Appellate Procedure
Rule 66.3(d) 1°
Rule 66.3(f) • 1D
U.S. Constitution, Fourteenth Amendment 6
in
STATEMENT REGARDING ORAL ARGUMENT
In the event the within Petition for Discretionary Review is granted by
this Honorable Court, Appellant requests oral argument, and submits that
oral argument would assist this Honorable Court in resolving the questions
involved herein, as the issues in this case, while highlighted by the
particular facts of this case, are likely to recur.
STATEMENT OF PROCEDURAL HISTORY
At trial in Cause No. 25549, a jury found Appellant, Johnny Ray Muldrow,
guilty for the criminal offense of Possession of a Controlled Substance,
namely, methamphetamine. Appellant pled "true" to two enhancement allegations,
elected to have the trial court assess punishment, and was sentenced to fifty
(50) years imprisonment in the Texas Department of Criminal Justice,
Institutional Division.
Appellant appealed his conviction the the Sixth District Court of Appeals
in Cause No. 06-14-00103-CR. The Sixth District Court of Appeals confirmed
Appellant's conviction.on January 9, 2015.
Appellant submitted an application for a Writ of Habeas Corpus pursuant
to V.A.C'.C.P. Article 11.07 requesting entitlement to file an Out-of-Time
Petition for Discretionary Review. The Texas Court of Criminal Appeals ruled
that Appellant's appellate counsel was ineffective for failing to notify
Appellant Df the Sixth District Court of Appeals' decision in his direct
appeal and ruled that Appellant was entitled to file an Out-of-Time Petition
for Discretionary Review in Cause No. UR-83,804-01 on September 23, 2015.
Appellant timely filed a motion with the Texas Court of Criminal Appeals
requesting an extension of sixty (60) days to file his Petition for Discretionary
Review and to have T.R.A.P. Rule 9.3(b) suspended. The Texas Court of
Criminal Appeals granted this motion on October B, 2015 extending the time
to file his Petition for Discretionary Review until Monday, January 18,
2016, for Cause No. PD-1319-15.
STATEMENT OF THE CASE
On the evening of August 10, 2013, Officer Keel, a Texas State Trooper,
stopped a vehicle for exceeding the posted speed limit on the south loop
around Paris, Texas. Driving the vehicle was Appellant and in the passenger
seat was the owner Df the vehicle, Ms. Cynthia Frisbee. Appellant had just
recently took over driving the vehicle due to Ms. Frisbee complaining of
having a headache and not being able to concentrate on driving as a result.
Appellant was found to not have a driver's license, and was asked to step
out of the vehicle.
Ms. Frisbee informed Ofc. Keel that the license plates on the vehicle
were wrong, and that her son had stolen them and put them on the car for her.
After confirming that the license plates were indeed wrong, Ofc. Keel had
Ms. Frisbee get out of the car as well. As Ofc. Keel began to search the
vehicle, Ms. Frisbee informed him that she had a bag of marijuana on the
floorboard behind the driver's seat and that she had a pipe for smoking
methamphetamine in a cubbyhole in the driver's„side door. Ms. Frisbee then -
proceeded to show Ofc. Keel how to open the cubbyhole to retrieve the pipe.
When opening the rear hatch-back of the vehicle, Ms. Frisbee warned the
officer that the blue suitcase, belonging to her, contained acid and that he
needed to be carefule when handling it. Ms. Frisbee also informed Ofc. Keel
that the blue suitcase was hers and the two black suitcases underneath the
blue suitcases belonged to Appellant. The blue suitcase contained components
for manufacturing methamphetamine as well as trace amounts of methamphetamine.
Appellant was indicted and was tried before a jury in cause 25549 for
Possession of a Controlled Substance, namely, methamphetamine. He was found
guilty by the jury. Appellant pled "true" to two enhancement allegations,
elected to have the trial court assess punishment, and was sentenced to fifty
(50) years imprisonment in the Texas Department of Criminal Justice,
Institutional Division.
SUMMARY OF THE ARGUMENT
SINGLE GROUND FOR REVIEW [restated]
The State failed to establish a sufficient Affirmative Link between the
contraband and Appellant, thus the legal and factual sufficiency of the
evidence was insufficient to sustain a conviction in this case,
STANDARDS OF REVIEW
To determine the legal sufficiency of the evidence in support of a
conviction, the standard is whether, after viewing the evidence in the light
most favorable to the verdict, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. This is the
minimum standard required to enforce the defendant's constitutional rights.
The standard leaves it to the trier of fact to resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from basic
facts to ultimate facts. JACKSON v VIRGINIA, 433 U.S. 307, 31 B-19 (1979).
In a factual sufficiency review, the court views all the evidence in a
neutral light and determines whether the evidence supporting the verdict is
so weak that the jury's verdict is clearly wrong and manifestly unjust or
whether the great weight and preponderance of the evidence is contrary to
the verdict. WAT5DN v STATE, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). In
a factual sufficiency review, all the evidence is considered equally,
including the testimony of defense witnesses and the existence of alternative
hypothesis. CLEWIS v STATE, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996. See also
PITONYAK v STATE, 253 S.W.3d 834, 845 (Tex.Apprui,-;.Austin 2008).
The "Affirmative Links Rule" is desighned to protect the innocent
bystander from conviction based solely upon his fortuitous proximity to
someone else's drugs. This rule simply restates the common-sense notion that
a person - such as a father, son, spouse, roommate, or friend - may jointly
possess a house but not necessarily jointly possess the contraband.found in
the house. (See U.S. v SMITH, 930 F.2d 10B1, 10B6-87 (5th Cir. 1991)). Thus,
this Court has formulated the rule that "when the accused is not in exclusive
possession of the place where the substance is found, it cannot be concluded
that the accused had knowledge of and control over the contraband unless there
are additional independent facts and circumstances which affirmatively link
the accused to the contraband." POINDEXTER v STATE, 153 S.W.3d 402 (Tex.Crim.
App. 2005).
ARGUMENT
In the instant case, Appellant, Mr. Muldrow, was convicted for the
Possession of a Contraolled Substance, namely, methamphetamine (meth). The
State's case against Appellant included testimony of the police officers
involved with the. arrest and investigation, video of the vehicle stop, the
ensuing search of the vehicle and subsequent arrest of Appellant and his
co-defendant and owner of the vehicle, Ms. Cynthia Frisbee, items and photos
of items recovered from the search of the vehicle, and the testimony of
Appellant's co-defendant, Cynthia Frisbee - the only civilian witness to
testify against Appellant.
The search of the vehicle was predicated by the fact that the license
plates on the vehicle were the wrong plates, and in fact had been stolen and
installed on the car. The ensuing search of the vehicle produced contraband
that consisted of a small bag containing marijuana and rolling papers, a
pipe used for smoking methamphetamine, material used to manufacture (or cook)
methamphetamine, including trace amounts of methamphetamine itself.
Mr. Muldrow was portrayed as a person who had for several months be;3n
assisting his co-defendant, Cynthia Frisbee, in purchasing psuedoephedrine
(Sudafed) pills for use in the manufacturing of methamphetamine and assisting
Ms. Frisbee in manufacturing the methamphetamine. Appellant allegedly made
several trips back and forth between Texarkansa;, Arkansas and Dallas, Texas
with Ms. Frisbee in order to get homeless people to purchase the psuedo
ephedrine pills, paying them $10 or a small amount of meth, in addition to
assisting Ms. Frisbee in manufacturing the methamphetamine in varios places,
although recently, and the only location specified that Appellant was involved
with manufacturing the meth, was in the basement of the house where Mr. Muldrow
lived with"his mother.
The issue here is that the portrayal of Mr. Muldrow was completely
fabricated, and the only evidence supporting an Affirmative Link between
the contraband found in the vehicle and Appellant was that he happened to
be driving the car and the testimony given by his co-defendant, which was
given in exchange for a lesser charge.
Ms'. Frisbee was offered a plea agreement which resulted in one of her
charges being dropped, the other charge being reduced from a 1st degree felony
to a 2nd degree felony, and reduced prison time in exchange for testifying
against Mr. Muldrow (RR Vol. 4, pgs. 214-15). This also included a debriefing
with the police (RR Vol. 4, pg. 247) in which she was coached into what to
say, as evidenced by such statements as "Is that what you want me to do, tell
stuff like that?" and "Tell me what you want to know." (RR Vol. 4, pg.247).
Ms. Frisbee's fabricated testimony against Mr. Muldrow was also given
out of pure spite to ensure he would go to prison because he refused to take
the blame of the full charge so that she would not get in trouble. This is
evidenced by a letter that Ms. Frisbee wrote to Mr. Muldrow in which she
indicates that she has been in a similar situation before and specifically
asks Mr. Muldrow to take the blame for her as stated:
"Do you remember that boyfriend of mine... I sure
wish I could get you to do what he did far me. I
would see to it that you were taken care of the
same as I did him for two and a half years. You
know what I'm asking and I know what I'm asking,
only one of us has to take that charge, all I can
do is promise not to desert you."
(RR Vol. 4, pg. 233)
Ms. Frisbee goes on to testify, "I was trying to get him to take the full
charge and get me out of trouble." (RR Vol. 4, pg'. 233).
There are a number of inconsistencies and lies throughout Ms. Frisbee's
testimony. Had defense counsel conducted any investigation at all during her
preparation for trial or interview any witnesses, Ms. Frisbee would easily
have been impeached as a witness, and thus destroy the State's case against
Mr. Muldrow.
One of the most notable lies Ms. Frisbee makes in her testimony concerns
the location in which she and Mr. Muldrow allegedly "cooked the meth". being
in the basement of the house that Appellant lived wijth his mother and aunt.
They would cook the meth in the afternoon/evening, in the basement, while
Appellant's mother and aunt were at work. (RR Vol. 4, pg. 175, 177-78, 213,
253).
The catch here is that Mr. Muldrow's mother lives in her own home, as
does his aunt. His mother has been retired for nearly 10 years and is
immobile due to her health and the loss of part of one of her legs, and her
house DOES NOT have a basement. Mr. Muldrow's aunt's house also DOES NOT
have a basement and his aunt lives in her own house and also has been retired
for several years. Mr. Muldrow also does not live with "either his mother or
his aunt, but has his own house, which also DOES NOT have a basement.
Ms. Frisbee even states specifically that she had left her blue suitcase
"in the basement" 2 days prior to leaving on the current trip back to Dallas.
(RR Vol. 4, pg. 178). Had Ms. Frisbee truely had been in the house as she
claims, she would not have been so mistaken about being in a basement.
An additional issue concerns Officer Keel's testimony as well, notably
regarding Appellant's knowledge of the chemicals in the blue suitcase due to
the odor they emitted. Officer Keel responded to the State's question that
anyone loading the blue suitcase would have been able to smell that bag.
i
Officer Keel testifies that when Trooper Sauls first pulls the blue
suitcase out that he was able to smell "a real chemical smell. It's real: v
pungent. It's just chemical." then confirmed that anyone who loaded the car
"they would have been able to smell it." (RR Vol. 4, pg. 71).
The flaw here is that the vehicle was a hatch-back. Therefore, instead
of the trunk area being a separate and enclosed area from the interior of the
vehicle, the trunk area was PART OF THE INTERIOR OF THE CAR. Had there been
any odor, especially from "about four feet away from it" as Officer Keel
testified (RR Vol. 4, pg. 71), he would have smelled this "pungent" "chemical"
smell when he first started searching the interior of the vehical; however, he
did not. Ms. Frisbee even testified that the method she used to manufacture
the meth produced no odors (RR Vol. 4, pg. 235). Officer Keel's testimony
regarding these odors was fabricated in order to help establish an affirmative
link between the contents of the blue suitcase and Mr. Muldrow.
The State knowingly using false testimony in order to gain a conviction
is the same as knowingly presenting false evidence. This is a violation of
Mr. Muldrow's 14th Amendment rights. "It is well established that a conviction
obtained through use of false evidence, known to be such by representatives
of the State, must fall, under the 14th Amendment." NAPUE v ILLINOIS, 360 U.S.
264 (1959).
Federal and State prosecutors are supposed to seek justice, not merely
score convictions. The prosecutors in the instant case violated that duty.
"A prosecutor's duty is to seek justice and to prosecute with 'ernestness
and vigor', but must not use 'improper methods calculated to produce a
wrongful conviction.'" BERGER v UNITED 5TATE5, 295 U.S. 78, BB (1935).
The facts in this case show that the State does NOT affirmatively link
Mr. Muldrow toJthe contraband found in the vehicle. The only Affirmative
Link between Appellant and the contraband was that he was driving the car
and the fabricated testimonies of his co-defendant and Officer Keel.
This Honorable Court has recognized that, when a defendant is charged
with unlawful possession of a controlled substance, the State must meet at
least two evidentiary requirements: 1) The State must prove that the defendant
exercised care, control, and management over the substance, and 2) That he
knew what he possessed was contraband (citing PAYNE v STATE, 480 S.W.2d 732,
734'(Tex.Crim.App. 1972)). The State must provide proof that a defendant
intentionally or knowingly exercised actual care, custody, control or
management over a controlled substance consistant with the mens rea
requirement of a possessory offense under the Controlled Substances Act.
This Court has held that the State must provide evidence of "affirmative
links" between a defendant and a controlled substance. HUMASDN v STATE,
728 S.W.2d 363 (Tex.Crim.App. 19B7). See also HCGOLDRICK v STATE, 6B2
S.W.2d 573 (Tex.Crim.App. 1985).
In HURTADO v STATE, B81 S.W.2d 73B, 743 (Tex.App. - Houston [1st Dist.]
1994), the court listed an array of factors that tend to indicate a
Befehdant'"s~knowleclge"bf "ana" control"over' the cbTrtTaband"."Th~e"se~"factors "apply
to Mr. Muldrow's case as follows:
~1~ TJa^"the_coh~traband "In plaTrT view?
- None of the contraband was in plain view. The small bag containing
marijuana was behind the driver's seat on the floorboard, the pipe
for smoking meth was located in an enclosed cubbyhole on the driver's
door, and the remaining contraband was found in the enclosed blue
suitcase, located in the trunk, which belonged to the co-defendant.
2. Was the contraband conveniently accessible to the accused?
- No.
3. Was the contraband in a place owned by the accused?
- No. The vehicle was owned by the co-defendant, Ms. Frisbee, as
was the blue suitcase in which the methamphetamine and the
material used for manufacturing the meth was located (RR Vol. 4,
pg. 224). Ms. Frisbee also testified that the meth pipe found in
the cubbyhole on the door was hers (RR Vol. 4, pg. 21B) and that
she had purchased the marijuana in Hot Springs, Arkansas and had
thrown it in the back behind the driver's seat (RR Vol. 4, pg.
202).
4. Was the contraband in a car driven by the accused?
- Yes; however, Ms. Frisbee testified that Mr-. Muldrow had -just
recently started driving the vehicle because she had a headache
and no longer wanted to drive (RR Vol. 4, pg. 197, 218).
5. Was the contraband found on the same side of the car as the accused?
- Yes, but none of it was in plain view of Appellant nor was it
easily accessible. These being the meth pipe located in an
enclosed cubbyhole on the driver side door and the small bag of
marijuana located on the floorboard behind the driver's seat.
6. Was the contraband found in an enclosed space?
- All contraband was found in an enclosed space, with the exception
...of the-bag" containing the marijuana, which, while not. found in an
enclosed space, was not in plain view and not accessible to the
Appellant.
7. Was the paraphernalia to use the contraband in view of or found on the
accused?
- No paraphernalia or contraband was found on Mr. Muldrow's person
or in. either of his two black suitcases. .. .
8. Did the conduct of the accused indicate a consciousness of guilt?
- Ofc. Keel testified that Mr. Muldrow was talking very fast,
fidgiting in his seat, and also grinding his teeth which Ofc.
Keel attributed to actions of someone under the influence of
methamphetamine (RR Vol. 4, pg. 46-47); however, this can also ,
be attributed to the fact that Mr. Muldrow was scared because he
was driving without a driver's license, as well as in part to
his health condition - Thyroid cancer (in his neck).
9. Did the accused have a special relationship to the contraband?
- No. No contraband was found on Mr. Muldrow's person or in his
property. No tests were ever conducted to determine if he was
..._• .unde.r_.jtbe.JLnfluen.c.e_.of__a'ny_nar_co^
tested for on any of the contraband to establish if he had
handled any of it.
10. Did the occupant of the vehicle give any conflicting statements.about
relevant matters?
- No.
11. Were any affirmative statements made that connect the accused to the
contraband?
- No. On the contrary, Ms. Frisbee, the owner of the vehicle,
testified that she was the one who informed Ofc. Keel that her
son had stolen the license plates installed on the car and that
Mr. Muldrow had nothing to do with that (RR Vol. 4, pg. 200). She
informed the officer about the marijuana (RR Vol. 4, pg. 201),
informed him about the meth pipe and showed him how to open the
cubbyhole is was located in (RR Vol. 4, pg. 218), and states that
the blue suitcase containing the other contraband, including the
methamphetamine, belonged to her (RR Vol. 4, pg. 237-238).
Taking the evidence in the light most favorable to the verdict, Mr.
Muldrow was driving a car, with the owner of the car sitting in the passenger
seat, that contained components used to manufacture methamphetamine, contained
drug paraphernalia and also marijuana - none of which was in plain view. The
charges against Appellant would apply to anyone else had they been in the
vehicle, even a child. "Proof of strong suspicion or mere probability is
insufficient to support a conviction." BRAZIER v STATE, 74B S.W.2d 505, 507
(Tex.App. - Houston [1st Dist.] 1988). See also AUTRY v STATE, 626 S.W.2d
75B (Tex.Crim.App. 19B2) and FORD v STATE, 571 S.W.2d 924 (Tex.Crim.App. 1978).
The record evidence in the instant case fails to "affirmatively link"
'Appellant to the contraband .other than by evidence of his" presence and •T;
proximity to the contraband. In this case, the evidence is simply circumstantial.
The rules of circumstantial evidence do not require that circumstances
should to a moral certainty actually exclude every hypothesis that the act
may have been committed by another person, but that the hypothesis is a
reasonable one consistent with the facts proved and the circumstances, and
the supposition that the act may have been committed by another person must
not be out of harmony with the evidence. AUTRY v STATE, 626 S.W.2d 758 (Tex.
Crim.App. 1982). See also SWINK v STATE, 617 S.W.2d 203 (Tex.Crim.App. 19B1) "
and SULLIVAN v STATE, 564 S.W.2d 69B (Tex.Crim.App. 1978).
The truth is that Mr. Muldrow had come to Dallas in order to seek free
medical treatment for Thyroid cancer at Parkland Hospital (Dallas). While
living in Dallas, he stayed at homeless shelters and worked for an advertising
company distributing flyers, as well as working day-labor jobs. It was while
staying at the homeless shelters that Mr. Muldrow met Cynthia Frisbee, who
frequently visited the shelters in order to get homeless people to purchase
psuedoephedrihe (Sudafed) pills for her by paying them $10. Mr. Muldrow was
one of these people whom she would pay to get the pills for her - easy money
that he needed to survive on. Mr. Muldrow found out that Ms. Frisbee was from
Texarkana and that she was going back there for a week. She agreed to give Mr.
Muldrow a ride in order for him to visit his mother. Upon arriving, Ms.
Frisbee dropped Mr. Muldrow off at his mother's home in Fulton, Arkansas and
returned a week later in order to pick him up and return to Dallas. Upon
returning to pick him up, Ms. Frisbee asked him to place her blue suitcase,
already in the trunk, on top of his two suitcases telling him that she had
fragile items in it and didn't want them to get broken. On the drive back to
Dallas, Ms. Frisbee decided to drive through Paris, Texas in order to avoid
driving on the freeway. It was after she had turned off of the freeway that
she pulled over in a park and asked Mr. Muldrow to drive because she had a
headache (RR Vol. 4, pg. 21B). It was soon after this that the car was pulled
over by a Texas State Trooper for speeding - going 67mph in a 60mph posted
zone. Mr. Muldrow had no knowledge at all of any contraband being present
in the vehicle.
Another item to note which is consistent with Mr. Muldrow'only going
to visit his mother for a week is the fact that the only items in his two
suitcases were clothing. Ms. Frisbee also testified that Mr; Muldrow was
working in Dallas passing out flyers (RR Vol. 4, pg. 249) and that this was
"a round trip kind of thing" (RR Vol. 4, pg. 174). Also of note was that Ms.
Frisbee also testified that they were relocating to Dallas on this trip
(RR Vol. 4, pg. 249), and also states that they were only going to Dallas
for only a few days and made hotel reservations (RR Vol. 4, pg. 192); however,
of the items found in Ms. Frisbee's vehicle, no clothing, hygiene items, or
even the tent that Ms. Frisbee claimed she lived in up in Hot Springs, Arkansas
in a friend's front yard (RR Vol. 4, pg. 216-217), were found to indicate that
Ms. Frisbee was relocating to Dallas, planning to stay at a hotel, or even
stay in Dallas for any extended period of time.
All of this confirms that Mr. Muldrow had simply caught a ride with Ms.
Frisbee in order to visit his mother and was returning back to Dallas while
Ms. Frisbee was simply making one of her frequent visits down to Dallas in
order to purchase more pills.
While a trier of fact could conclude from the combination of Mr. Muldrow's
proximity to the contraband - being the driver of the vehicle at the time it
was stopped along with the fabricated testimonies of Ms. Frisbee and Officer
Keel - that he knowingly exercised actual care, custody, control or management,
over the contraband found in the vehicle, it would be JUST AS RATIONAL for
that same trier of fact to conclude that Mr. Muldrow was entirely unaware of
the presence of any contraband.
Without some evidence excluding the equally reasonable hypothesis that
Mr. Muldrow was unaware of the presence of the contraband, the trier of fact
cannot conclude BEYOND A REASONABLE DOUBT that Mr. Muldrow knowingly
possessed any of the contraban.
From the facts in the record, the evidence is not sufficient to sustain
Appellant's conviction. DIXON V STATE, 541 S.W.2d 437 (Tex.Crim.App. 1976).
THIS HONORABLE COURT SHOULD GRANTTREVIEW IN THIS CASE
The Court of Appeal's decision abolishes any meaningful distinction
regarding Affirmative Links, and opens the door for anyone who happens to
be unknowingly in the proximity of contrband to be convicted of a crime for
which they are innocent of.
This amounts to a judicial avoidance of legislated and/or constitutionally
guaranteed rights. " ..
The rights at stake herein go to the heart of the criminal justice
system, and their violation should NOT be countenanced by this Honorable
Court, not even to allow one conviction to stand. See Tex.R.App.Proc. Rules
66.3(d) and 66.3(f).
10
CONCLUSION AND PRAYER FOR RELIEF
Due to circumstantial evidence and his unfortunate proximity to
contraband and the frabricated testimonies of his co-defendant and Officer
Keel, Appellant was deprived of important and meaningful rights as
guaranteed by the United States Constitution as well as the Texas State
Constitution.
There was harm done thereby because it was evident from the testimonies
presented and the nature of said testimonies that it was intended to overcome
the lack of any Affirmative Links on which the State would have been
compelled so seek a conviction for the actually Indicted offense.
Respectfully, Appellant's conviction should be vacated and overturned,
or his cause should be remanded for new trial, where, he can adequately
prepare to defend against all charges which may be brought against him.
Executed this 5th day of November, 2015.
Respectfully submitted,
Johnny Muldrow - Appellant
Pro Se Representation
TDCJ #1934318
Mark W. Stiles Unit
3060 FM 3514
Beaumont, TX 77705
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition
for Discretionary Review, with Appendix, was delivered to the individuals
listed below via the U.S. Postal Service, postage pre-paid, on November 5, 2015.
1) to the Texas State Prosecuting Attorney
P.O. Box .13046, Capitol Station
Austin, Texas 78711
and
2) to the Lamar County Criminal District Attorney
Gary D. Young, Esq., District Attorney
District Attorney's Office
Lamar County Courthouse
119 North Main Street
Paris, Texas 75460
Respectfully submitted,
Johnny Muldrow - Appellant
Pro 5e Representation
TDCJ #1934318
Mark W. Stiles Unit
3060 FM 3514
Beaumont, TX 77705
12
APPENDIX A
13
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00103-CR
JOHNNY RAY MULDROW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 25549
Before Morriss, C.J., Moseley and Carter,* JJ.
Memorandum Opinion by Justice Moseley
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
After a routine traffic stop led to the discovery of "a rolling meth lab," driver Johnny Ray
Muldrow was convicted.by a jury of possession of 200 grams or more but less than 400 grams of
methamphetamine. After he had been convicted by a jury, Muldrow pled "true" to two
enhancement allegations, elected to have the trial court assess punishment, and was sentenced to
fifty years' imprisonment. On appeal, Muldrow argues (1) that the statutes under which he-was
convicted—Sections 481.115(e) and 481.002(49) of the Texas Health and Safety Code—are
facially unconstitutional and (2) that the evidence is legally insufficient to support the jury's
finding of guilt. We find that Muldrow failed to preserve his complaint that Sections 481.115(e)
and 481.002(49) are void for vagueness and inadequately briefed the remaining grounds arguing
that these sections are unconstitutional. We further find that the evidence was legally sufficient
to support thejury's verdict. Consequently, we affirm the trial court'sjudgment.
I. The Constitutional Complaints are Either Unpreserved or Inadequately Briefed
Section 481.115(e) of the Texas Health and Safety Code makes possession of a Penalty
Group 1 controlled substance a first degree felony "if the amount of the controlled substance
possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less
than 400 grams." TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010). Section
481.002(49) defines an "adulterant or dilutant" as "any material that increases the bulk or
quantity of a controlled substance, regardless of its effect on the chemical activity of the
controlled substance." Tex. HEALTH & SAFETY CODE ANN. § 4.81,002(49) (West Supp. 2014).
In a written objection filed with the trial court, Muldrow argued that both of these sections are
facially unconstitutional. Specifically, Muldrow made the following argument:
These statutes are facially unconstitutional because they violate the Equal
Protection Clause by subjecting minor drug users, dealers, and manufacturers to
the same punishment as major drug dealers and manufacturers. These statutes are
not rationally related to the State's interest in punishing major drug dealers more
severely than minor drug dealers, under a market-based approach, because they
do not require the State to prove the chemical composition and weight of the
actual illegal substance.
Secondly, the statutes violate the Due Process Clause because they permit
the State to secure a conviction for dirt, bong water, bathtub water, pool water,
ocean water, or bleach that contains traces of methamphetamine under a heavier
weight classification, which is subject to higher minimum sentence than the
weight classification of the actual usable amount of controlled substance
possessed. These statutes also violate[] the Eighth Amendment's prohibition of
cruel and unusual punishment. Defendant should be charged only with the usable
amount of methamphetamine that he is alleged to have possessed and not the
unusable substance.
The trial court overruled Muldrow's constitutional challenges.
On appeal, Muldrow raises several grounds for his constitutional challenge to Sections
481.115(e) and 481.002(49). The first ground argues that these sections are void for vagueness.
Specifically, he asks this Court to determine whether the terms "regardless" and "quantity,"
included within Section 481.002(49), render both challenged sections vague.
To preserve a complaint for our review, a party must first present to the trial court a
timely objection stating the specific grounds for the desired ruling if not apparent from the
context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). The objection lodged
before the trial court must comport with the ground asserted on appeal. See Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009). Because Muldrow did not challenge Sections
481.115(e) an318 S.W.3d 368, 388 (Tex. Crim. App.
2010); In re S.A.G., 403 S.W.3d 907, 913 (Tex..App.—Texarkana 2013, pet. denied) (finding
issue unpreserved where, although appellant "voiced several objections on constitutional grounds
below, the idea that [the challenged] statutes were void for vagueness was not among those
objections").
Next, although Muldrow mentions on appeal that both the Equal Protection Clause and
Due Process Clause challenges 78were raised below,1 he recites the written objection, which we
excerpted above, without any citation to relevant legal authority. "This Court has no obligation
to construct and compose appellant's issues, facts, and arguments 'with appropriate citations to
authorities and to the record,'" as the appellant.is required to do pursuant to the Texas Rules of
Appellate Procedure. Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (quoting
TEX. R. App. P. 38.1(i)). We have found no and are unaware of any authority supporting
Muldrow's position. After carefully reviewing Muldrow's brief, we find this challenge
inadequately briefed. Thus, we find that Muldrow has waived his remaining constitutional
challenges to Sections 481.115(e) and 481.002(49). See id; McCarthy v. State, 65 S,W.3d 47,
49 n.2 (Tex. Crim. App. 2001); Vuongv. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).
II. Legally Sufficient Evidence Support's the Jury's Finding of Guilt
In his second point oferror, Muldrow argues that the evidence is legally insufficient to
support the jury's finding of guilt. In evaluating legal sufficiency to determine whether any
'On appeal, Muldrow abandoned his Eighth Amendment argument to the challenged sections.
4
rational jury could have found possession of 200 grams or more but less than 400 grams of
methamphetamine beyond a reasonable doubt, we will review all the evidence in the light most
favorable to the jury's verdict. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfieldv. State, 305 S.W.3d 859, 863
(Tex. App.—Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality ofthe evidence
presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J, concurring). We examine legal
sufficiency under the direction of the Brooks opinion, while giving deference to the
responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).-
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,
does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories ofliability, and adequately describes the particular offense for which the defendant was
tried.". Id.
Looking at the elements of the offense with which he was charged, it was the duty of the
State to prove that (1) Muldrow (2) intentionally or knowingly (3) possessed methamphetamine
(4) in an amount of 200 grams or more but less than 400 grams. See TEX. HEALTH &SAFETY
CODE ANN. § 481.115(e). "To prove unlawful possession of a controlled substance, the State
must prove that: (1) the accused exercised control, management, or care over the substance; and
(2) the accused knew the matter possessed was contraband." Poindexter v. State, 153 S.W.3d
402, 405 (Tex. Crim. App. 2005); see Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.
2006); see also Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2014). Here, Muldrow claims
only thatthe State was unable to prove, thatthe methamphetamine belonged to him.
Muldrow's troubles began with Timothy Keel, a Texas state trooper, who stopped the
speeding vehicle that Muldrow wasidriving and discovered that he did not have a driver's
license. In the course of questioning Muldrow, Keel determined that Muldrow was exhibiting
possible signs of recent methamphetamine consumption. Keel, who was acquainted with
Muldrow and his manner of speech, testified that Muldrow was speaking unusually fast, "kept
twitching in his seat" and was "grinding at his teeth." Keel decided to question Muldrow's
passenger, Cynthia Frisbee. Frisbee admitted to Keel that the vehicle belonged to her and that
the license plates on the vehicle were stolen from another car. Keel arrested Muldrow for
driving without a license and Frisbee for using fictitious plates.
After Muldrow and Frisbee were secured, Keel searched the vehicle. Inside the car, Keel
found rolling papers, a glass pipe used to smoke methamphetamine and, behind the driver's seat,
a clear plastic bag containing marihuana. Frisbee claimed these items as hers. According to
Keel, Muldrow "said his stuff was in the back." Keel then popped the vehicle's hatchback and
found it full of items including suitcases containing men's clothing and a large blue bag that
emitted apungent chemical smell, even from a distance of four feet away. Inside the blue bag,
Keel found a methamphetamine pipe and a number of items commonly associated with the
manufacture of methamphetamine, including an unknown white powder, a grinder commonly
used to grind pseudoephedrine pills, Drano, lye, glass bottles containing acid, nail polish,
hydrogen peroxide, a bottle containing a gas treatment, powdered iodine, coffee filters, plastic
tubing, a funnel, a strainer, gloves, measuring cup, an Igloo thermos, skillet, hotplate, glass pie
plates, digital scales, plastic baggies, and several unused syringes. Keel described the blue bag
as "a rolling meth lab." According to Brian Perry, an investigator with the Texas Department of
Public Safety (TDPS), the items in the blue bag were components of a red phosphorus
methamphetamine laboratory.
At trial, Frisbee explained that Muldrow was her business partner in a joint venture to
manufacture methamphetamine. She spent every day with Muldrow and taught him how to
prepare the drug. Together, they manufactured methamphetamine at Muldrow's residence. To
obtain the required pseudoephedrine pills without being placed under suspicion of their illegal
activities, Frisbee and Muldrow would travel to downtown Dallas and would enlist the homeless
in purchasing the pills for them in exchange for money. It was during such a trip that Keel
stopped Frisbee's vehicle.
Frisbee testified that the blue bag contained "everything that you need in order to make
dope," that she had left the bag at Muldrow's home on the night before the trip," and that
Muldrow was aware of the bag's contents. According to Frisbee, Muldrow loaded the blue bag
into the car before they left for Dallas. Frisbee admitted that both she and Muldrow smoked
methamphetamine during the drive and that they were both high when they were stopped by
Keel. When Frisbee heard the patrol unit's lights and sirens, she decided to eat the only usable
methamphetamine found in the vehicle. She told Keel about the marihuana in hopes that he
would be content with the find and would not continue searching the vehicle. Because she knew
that Keel would run the vehicle's license plates, she admitted that the plates were stolen and
hoped for leniency.
Claybion F. Cloud, III, a forensic chemist with the TDPS crime laboratory, tested some
of the contents of the blue bag. Cloud determined that the blue bag contained the leftover
byproducts of a methamphetamine cook that had already occurred. Frisbee testified that the
Igloo container that was in the bag had held liquid byproduct and that there would have been up
to a gram of methamphetamine that could have been extracted from this liquid. Cloud testified
that the liquid, comprised of mostly water and some methamphetamine, weighed 1,290 grams.
Cloud also tested a reaction vessel that contained 0.3 grams of methamphetamine residue, a
mason jar holding 4.17 grams of liquid containing methamphetamine, and a plastic bag
containing 84.81 grams of a crystalline form of dimethyl sulfate—a popular cutting agent for
methamphetamine—that had "hardly any meth in there at all." In total, the amount of
methamphetamine, together with adulterants and dilutants, exceeded athousand grams.
Despite this evidence, Muldrow argues that there is no evidence that he, as opposed to
Frisbee, possessed the methamphetamine. However, it is well established that an accused may
jointly possess contraband with another and that possession need not be exclusive. McGoldrick
v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
Possession may be established by proving either actual or constructive possession. Id.
While mere presence at the location where drugs are found is insufficient, by itself, to establish
actual care, custody, or control of those drugs, presence or proximity to drugs when combined
with other direct orcircumstantial evidence may be sufficient ifthe proof amounts to more than a
strong suspicion. Evans, 202 S.W.3d at 161-62. Unless the accused had exclusive possession of
the place where the controlled substance was found, the State must present "additional
independent facts and circumstances which affirmatively link the accused to the contraband" in
order to prove possession beyond areasonable doubt. Deshong v. State, 625 S.W.2d 327, 329
(Tex. Crim. App. [Panel Op.] 1981); see Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—
Texarkana 1998, pet. refd). "The 'affirmative links rule' is designed to protect the innocent
bystander from conviction based solely upon his fortuitous proximity to someone else's drugs."
Poindexter, 153 S.W.3d at 406.
As stated in Bussey v. State,
Anonexclusive list ofaffirmative links that can be sufficient, either singly
or in combination, to establish possession of contraband includes: (1) presence
when a search is conducted, (2) whether the contraband was in plain view,
(3) proximity to and the accessibility of the contraband, (4) being under the
influence of narcotics when arrested, (5) possession of other contraband or
narcotics when arrested, (6) making incriminating statements when arrested,
(7) attempting to flee, (8) the making of furtive gestures, (9) the presence of an
odor of contraband, (10) the presence ofother contraband or drug paraphernalia,
(11) the ownership of or the right to possess the place where the drugs were
found (12) whether the place where the drugs were found was enclosed,
(13) possession of a -large amount of cash, (14) conduct indicating a
consciousness of guilt, (15) the quantity of the contraband, and (16) the accused s
presence in a suspicious area under suspicious circumstances.
Bussey v. State, No. 06-13-00152-CR, 2014 WL 1390475, *4 (Tex. App.-Texarkana Apr. 9,
2014, no pet.) (mem. op., not designated for publication) (citing Evans, 202 S.W.3d at 162 n.12;
Hargrove v. State, 211 S.W.3d 379, 385-86 (Tex. App.-San Antonio 2006, pet. refd);
Muckleroy v. State, 206 S.W.3d 746, 748 n.4 (Tex. App.—Texarkana 2006, pet. refd); Olivarez
v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Kyte v. State,
944 S.W.2d 29, 31 (Tex. App.—Texarkana 1997, no pet.); see Jones, 963 S.W.2d at 830).
The number of links is not dispositive; rather, we look to the "logical force of all ofthe
evidence, direct and circumstantial." Evans, 202 S.W.3d at 162; see Taylor v. State, 106 S.W.3d
827, 831 (Tex. App.—Dallas 2003, no pet.) (holding that number of links is less important than
degree to which links tend to connect defendant to controlled substance). Here, although the
vehicle did not belong to him, Muldrow was one of two people present during the search of the
enclosed space. Although the blue bag was not in plain view, Frisbee testified that Muldrow
loaded the blue bag, and Keel testified that anyone who loaded the bag would have been able to
smell the pungent chemical odor that it emitted. As the driver of the vehicle, Muldrow had the
keys to open the hatchback to access the blue bag. Frisbee testified, and Keel suggested, that
Muldrow was under the influence of methamphetamine during the traffic stop. A bag of
marihuana was also found beneath the driver's seat. Thus, links 1, 3, 4, 5, 9, 10, and 12 were
established by the evidence. Importantly, Frisbee's testimony that Muldrow was her partner in
the venture to produce methamphetamine removed Muldrow from the category of an innocent
bystander and demonstrated his joint and conscious possession of the blue bag's illegal contents.
We find that the logical force of these links and the evidence, taken together, has a very strong
tendency to connect Muldrow to the methamphetamine.
We find that there is ample evidence to support the jury's finding that Muldrow
knowingly possessed methamphetamine in the amount alleged in the State's indictment.
10
Accordingly, we find the evidence legally sufficient to support Muldrow's conviction and
overrule his last point of error.
III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: December 16, 2014
Date Decided: January 9, 2015
Do Not Publish
11