James Cortney Dean v. State ( 2015 )

ACCEPTED
13-15-00110-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/17/2015 11:20:58 AM
CECILE FOY GSANGER
CLERK
NO. 13-15-00110-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 7/17/2015 11:20:58 AM
AT CORPUS CHRISTI CECILE FOY GSANGER
Clerk
JAMES CORTNEY DEAN,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from the
th
24 Judicial District Court
Of Victoria County, Texas
Cause No. 14-03-27814-A
BRIEF FOR THE STATE OF TEXAS
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS .......................................................................... i
INDEX OF AUTHORITIES ............................................................... ii-iii
STATEMENT OF THE FACTS ........................................................ 1-11
SUMMARY OF ARGUMENT ......................................................... 12-13
ARGUMENT ...................................................................................... 13-35
I. The trial court did not abuse its discretion in allowing
the admission of evidence that Appellant had swallowed
narcotics right before being confronted by the police.......... 13-33
II. In the alternative, any error from the admission of the
evidence of Appellant swallowing narcotics immediately
prior to being contacted by the police was harmless ............ 33-35
PRAYER .................................................................................................. 36
SIGNATURE ........................................................................................... 36
CERTIFICATE OF COMPLIANCE ................................................... 37
CERTIFICATE OF SERVICE ............................................................. 38
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
i
INDEX OF AUTHORITIES
Texas Cases
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ............... 25, 33
Cude v. State, 716 S.W.2d 46 (Tex. Crim. App. 1986) .................. 15, 26
Davis v. State, 979 S.W.2d 863
(Tex. App.-Beaumont 1998, no pet) ...................................................... 23
Ethridge v. State, 795 S.W.2d 281
(Tex. App.-Houston [14th Dist.] 1990),
pet. dism'd, 812 S.W.2d 600 (Tex. Crim. App. 1990) (en banc) ......... 19
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ..................... 15
Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) .................. 25
Gigliobanco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) ...... 25-26
Gonzalez v. State, 2014 WL 4049800, 13-13-00427-CR
(Tex. App.-Corpus Christi 2014, pet. ref’d) ......................................... 34
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)....................... 18
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) ................... 29
Ketchum v. State, 199 S.W.3d 581
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 33
Hyde v. State, 846 S.W.2d 503 (Tex. Crim. App. 1993) ...................... 19
Marles v. State, 919 S.W.2d 669
(Tex. App.-San Antonio 1996, pet. ref’d) ............................................. 23
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .... 14, 23
Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000).................... 14
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
ii
Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 2004) ................... 25
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)................ 14, 18
Rogers v. State, 2006 WL 240229, 2-04-529-CR
(Tex. App.-Ft. Worth, no pet)
(mem. op. not designated for publication) ............................................ 32
Sanchez v. State, 2015 WL 2353382, 13-12-00603-CR
(Tex. App.-Corpus Christi 2015, pet. filed)
(mem. op. not designed for publication) ............................................... 19
Smith v. State, 211 S.W.3d 476
(Tex. App.-Amarillo 2006, no pet)......................................................... 23
State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) ................. 31
Yohey v. State, 801 S.W.2d 232
(Tex. App.-San Antonio 1990, pet. ref’d) ............................................. 23
Texas Rules
TEX. R. APP. P. 9.4 ................................................................................ 37
TEX. R. APP. P. 44.2 .............................................................................. 33
TEX. R. EVID. 403 ........................................................................... 25, 32
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
iii
NO. 13-15-00110-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
JAMES CORTNEY DEAN……..………………..………………..Appelant
v.
THE STATE OF TEXAS,…..……………………………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellee in the above numbered
and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS
Appellant was indicted on March 7, 2014 for one count of
Manufacture or Delivery of Substance in Penalty Group 1 in an amount of
four grams or more but less than 200 grams. [CR-I-5]. The offense was
enhanced to habitual offender status due to the Appellant having two prior
non-State jail felony convictions. [CR-I-5]. Appellant’s case was called to
trial on March 2, 2015. [RR-II-1].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
1
In Appellant’s opening argument his defense counsel mentioned that
Appellant’s passenger on the night of his arrest, Brittany Williams, had also
been charged with possession of the cocaine. [RR-II-148]. Appellant’s
counsel then suggested that Ms. Williams had a deal for testifying for the
State in this case and mentioned that she was on parole for delivery of
cocaine. [RR-II-148]. Appellant’s counsel then asked the jury after they
viewed the video of the arrests in this case to consider the difference in
Appellant’s reaction to being arrested compared to Ms. Williams, and
asserted that it was Ms. Williams who was acting in a guilty manner. [RR-
II-148-149]. Appellant’s counsel then argued that it was Ms. Williams who
was in possession of the cocaine at issue in this case and argued that she was
the person who asked the Appellant to consume a portion of the cocaine.
[RR-II-149]. Appellant’s counsel then conceded that Appellant did in fact
consume some of the cocaine. [RR-II-149]. Appellant’s counsel then
criticized how the police had investigated the scene and argued that if the
police had properly finger printed the evidence they would have found Ms.
Williams’ finger prints on the contraband. [RR-II-149]. Appellant’s
counsel then promised that the evidence would show that Ms. William was
in fact closer to the drugs than Appellant was. [RR-II-150].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
2
The State’s first witness was Deputy Stephen Lang of the Jackson
County Sheriff’s Department, who had been an officer of the Victoria Police
Department at the time of this case. [RR-II-151-152]. Deputy Lang then
testified to initiating a traffic stop on Appellant’s vehicle on January 18,
2014 and having Appellant not immediately pull over but rather continue
driving for another three or four blocks. [RR-II-153-155]. Deputy Lang
went on to describe searching Appellant’s vehicle and finding a green baggie
within the DVD-radio player in Appellant’s vehicle. [RR-II-161]. Deputy
Lang further established that upon further inspection he believed the green
baggie contained a quantity of crack cocaine. [RR-II-166]. Deputy Lang
then described removing the face plate of the DVD player and finding
several additional baggies that he also determined contained crack cocaine.
[RR-II-166-167]. Deputy Lang also described locating a black digital scale.
[RR-II-167-168]. Deputy Lang then described questioning both the
Appellant and Ms. Williams and stated that both denied knowledge of the
cocaine. [RR-II-175]. Deputy Lang then described the search of Appellant
at the Victoria County jail, where an empty, tiny Ziploc baggie with a
Batman emblem upon it was found on the Appellant as well as $404 in
United States currency and explained how these items were consistent with
drug trafficking. [RR-II-178-179]. Deputy Lang then testified that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
3
digital scale was located in a central console within the vehicle and that said
console was closed when he first entered the vehicle. [RR-III-6-7].
On cross-examination, Appellant questioned Deputy Lang about the
possibility of having drug detection dogs sniff the money that was seized
from Appellant. [RR-III-16-20]. Appellant then questioned Deputy Lang
about the initial traffic stop and got Deputy Lang to establish that Appellant
pulled his vehicle over under a light. [RR-III-26-27]. Appellant also had
Deputy Lang testify that it would be reasonable for a person who was pulled
over by the police to pull over under a street light. [RR-III-26-27].
Appellant then questioned Deputy Lang regarding the console where the
digital scale was located and had Deputy Lang testify that the console was
within equal reach of Ms. Williams as it was of the Appellant. [RR-III-33-
34]. Appellant then had Deputy Lang testify that the green baggie
containing crack cocaine was located on the passenger’s side of the DVD
player. [RR-III-39]. Appellant also asked Deputy Lang who had greater
access to the baggie between the Appellant and Ms. Williams to which
Deputy Lang indicated both parties had equal access. [RR-III-39].
Appellant then questioned Deputy Lang on if the green baggie was visible
from the driver’s side of the vehicle. [RR-III-39-40]. Appellant then
questioned Deputy Lang about whether it was the Appellant or Ms. Williams
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
4
who reacted worse to being arrested, and Deputy Lang indicated it was Ms.
Williams. [RR-III-41]. Appellant then questioned Deputy Lang about his
knowledge that Ms. Williams was on parole. [RR-III-41-42]. Appellant
then again questioned Deputy Lang about if Ms. Williams was within arm’s
reach of the cocaine, to which Deputy Lang agreed that she was. [RR-III-
44-46]. Appellant then questioned Deputy Lang about his handling of the
seized contraband and digital scale and questioned whether Deputy Lang’s
picking up those items could have destroyed the fingerprints of whoever
possessed those items, to which Deputy Lang conceded that it was possible.
[RR-III-46-49]. Appellant also had Deputy Lang establish that nothing was
found inside of the “Batman baggie”. [RR-III-50].
On re-cross, Appellant asked Deputy Lang how long it would have
taken for Ms. Williams to lift up the cover to the DVD player and insert the
green baggie inside, to which Deputy Lang established it “wouldn’t take a
long time at all” and agreed it could be done in a couple of seconds. [RR-
III-60]. Appellant also again had Deputy Lang testify that the green baggie
was located at a point that was closer to Ms. Williams than to the Appellant.
[RR-III-61].
The State next called Ms. Gennie Moya. [RR-III-64]. Ms. Moya
established she was a friend of Brittany Williams. [RR-III-64]. Ms. Moya
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
5
then testified to getting a ride with the Appellant on January 18, 2014 and to
seeing the Appellant “mess with his radio a little bit.” [RR-III-65, 67]. Ms.
Moya subsequently described seeing Appellant fighting with his radio and
stated she also thought she saw a “little bit of plastic” inside the radio. [RR-
III-68]. Ms. Moya then confirmed she observed Appellant struggling with
the radio twice during that drive. [RR-III-69]. Ms. Moya then admitted she
had a prior theft by check conviction. [RR-III-70].
On cross-examination, Ms. Moya characterized herself as one of
Brittany Williams’ best friends. [RR-III-72]. Appellant then questioned Ms.
Moya about Ms. Williams being on parole. [RR-III-73].
The State then called Ms. Brittany Williams. [RR-III-86]. Ms.
Williams testified to seeing Appellant pull something from his sock and
ingest it. [RR-III-90]. Ms. Williams was not able to identify what that
object was. [RR-III-90]. Ms. Williams also acknowledged she did not tell
the police at the arrest scene about seeing Appellant swallow something.
[RR-III-94]. Ms. Williams then testified that she was on parole for
Manufacuture or Delivery and also had a prior felony conviction for Failure
to Appear. [RR-III-95]. Ms. Williams then explained that she only told the
police about Appellant swallowing the unknown substance after the police
told her the Appellant was being taken to the hospital. [RR-III-96]. Ms.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
6
Williams then denied possessing cocaine on January 18, 2014, denied being
aware that there was cocaine in the vehicle in which herself and the
Appellant was driving on that date, and denied telling Appellant to swallow
some of the drugs. [RR-III-98-99].
Appellant’s cross-examination of Ms. William began with questioning
her about her prior felony drug conviction. [RR-III-99-101]. Appellant then
questioned her about the circumstances of her prior Fail to Appear
conviction. [RR-III-101-102]. Appellant than had Ms. Williams
acknowledge that from where she was sitting in Appellant’s vehicle she was
within easy reach of the narcotics. [RR-III-107]. Appellant then questioned
Ms. Williams at length about the circumstances of the charge against her
from this incident being dismissed and about the possibility the State could
refile the charges against her. [RR-III-107-109]. Appellant then questioned
Ms. Williams about her not telling the investigating officers who
interviewed her in February of 2014 about Appellant swallowing an
unknown item. [RR-III-110-111]. Appellant then asked Ms. Williams how
long it would take her to have hidden drugs behind the DVD slot to which
Ms. Williams stated she did not know because she had not done such a
thing. [RR-III-111]. Appellant then asked Ms. Williams if she was the one
who told Appellant not to pull over during the initial traffic stop; an
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
7
accusation that Ms. Williams denied. [RR-III-111-112]. Appellant then
accused Ms. Williams of having not seen Appellant swallow anything; an
accusation that Ms. Williams also denied. [RR-III-112].
The State next called Sergeant Joseph Randolph of the Victoria
County Sheriff’s Office. [RR-III-116]. Sergeant Randolph described how
on the morning of January 19, 2014, there was an incident in the Victoria
County jail where the Appellant was found lying on the floor of a holding
cell, shaking. [RR-III-119]. Sergeant Randolph further established this
occurred after the Appellant had been in a holding cell for over nine hours.
[RR-III-121]. Sergeant Randolph then testified that when deputies approach
the Appellant, Appellant was unresponsive and was bleeding “pretty bad”
from the back of his head. [RR-III-122-123]. Sergeant Randolph further
established that Appellant was suffering a seizure and that his condition was
serious enough that Appellant was taken to the hospital. [RR-III-124-125].
Sergeant Randolph then described interviewing Brittany Williams for
medical purposes as he believed she might have relevant information about
Appellant’s condition. [RR-III-127]. Sergeant Randolph then described
what was told to Ms. Williams about Appellant’s condition and the
information she provided about having seen Appellant swallow an unknown
object. [RR-III-127-128].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
8
On cross-examination Appellant asked Sergeant Randolph if Ms.
Williams had told him that she had given the drugs to Appellant to swallow.
[RR-III-129]. Sergeant Randolph stated she did not make such an
admission. [RR-III-129].
The State later called Dr. Daniel Cano. [RR-III-151]. Dr. Cano
testified that he treated the Appellant in January of 2014. [RR-III-154]. Dr.
Cano sponsored the admission of medical records from Appellant’s
treatment at that time. [RR-III-160; State’s Exhibits 20-21]. Dr. Cano then
established that Appellant’s principle diagnosis was poisoning by cocaine,
and that he agreed with that diagnosis. [RR-III-165; State’s Exhibit 20]. Dr.
Cano then helped show how State’s Exhibit 21 established that Appellant
had ingested an unknown amount of cocaine, benzodiazepine, and PCP.
[RR-III-167; State’s Exhibit 21]. Dr. Cano then established that a person
could have a seizure ten hours after swallowing cocaine if there was a
delayed release into the bloodstream, and that wrapping cocaine in a plastic
baggie could cause such a delayed release. [RR-III-171-172].
On cross-examination, Dr. Cano established the hospital had detected
the presence of cocaine, PCP, and benzodiazepine through a urine test. [RR-
III-174].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
9
After the completion of the State’s case, Appellant recalled Brittany
Williams to the stand. [RR-IV-61]. Appellant then questioned Ms.
Williams about whether she had told Sergeant Randolph that Appellant had
removed the unknown substance that he then swallowed from his sock, to
which Ms. Williams acknowledged she had not so told Sergeant Randolph.
[RR-IV-70]. Appellant then once again reiterated that Ms. Williams was a
convicted felon. [RR-IV-71-72]. Appellant also asked Ms. Williams if she
would lie in order to avoid having criminal charges from this incident re-
filed upon her, to which Ms. Williams insisted she would not lie. [RR-IV-
72].
Appellant’s closing argument suggested that Appellant had continued
driving after being signaled to stop by the police simply because Appellant
wanted to stop under a light. [RR-IV-100-101]. Appellant’s counsel then
again reiterated Ms. Williams’ criminal record and insisted she had lied
during the trial. [RR-IV-101-102]. Appellant’s counsel then argued that
Ms. Mayo also had a motive to lie given her friendship with Ms. Williams.
[RR-IV-103]. Appellant’s counsel then at length attacked Ms. Williams’
credibility by stressing her prior criminal record, alleged inconsistencies in
her testimony and argued that Ms. Williams had given the Appellant the
drugs to swallow, that Ms. Williams had a motive to lie to avoid being
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
10
prosecuted in this matter herself, and that the drugs at question in this case
belonged to Ms. Williams. [RR-IV-104-109]. Appellant’s counsel also
stressed that the drugs were more visible from Ms. Williams’ vantage point
in the vehicle then they were from Appellant’s. [RR-IV-110]. Appellant’s
counsel then criticized the police investigation for not taking photographs of
where the digital scale was located, for potentially contaminating any finger
prints on the seized items, and for not having drug detecting dogs perform a
sniff on the seized money. [RR-IV-110-112]. Appellant’s counsel then
again attacked Ms. William’s credibility, reminding the jury that she was “a
convicted drug dealer” and insisting that she was only testifying to protect
herself and that the drugs actually belonged to Ms. Williams. [RR-IV-114-
116]. Appellant’s counsel then insisted that the case really comes down to
whether “you believe Brittany Williams or you don’t believe Brittany
Williams.” [RR-IV-117].
The jury found Appellant guilty of the offense alleged in the
indictment. [RR-IV-130]. After the sentencing hearing, the jury assessed a
punishment of 35 years imprisonment and a $5,000 fine. [RR-IV-166].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
11
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in permitting the evidence
that Appellant had swallowed narcotics prior to being contacted by the
police to be admitted into evidence as that evidence was relevant and was
not unfairly prejudicial.
The evidence was relevant because it helped the State establish two
facts of consequence for the case. First it provided proof of the affirmative
link between the Appellant and the narcotics located in his vehicle which the
State had to establish in order to prove the possession element of the charged
offense. Second the evidence helped the State “shore up” the testimony of
one of its key witnesses, Brittany Williams, whose credibility was critical in
this case and was under heavy attack by the defense throughout the trial.
Therefore since the evidence helped prove facts of consequence, the
evidence was relevant.
Nor was the evidence unfairly prejudicial. The evidence had immense
probative value as the State had a clear need for the challenged evidence. It
was the only evidence the State had linking the Appellant to the drugs
located in his vehicle that could not be plausibly attacked or explained away
by the defense. Furthermore, it was the only evidence the State had at all
that could shore up Ms. William’s testimony after the defense attacked her
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
12
credibility and suggested she was actually the person in possession of the
narcotics. Nor did the evidence risk having the jury decide the case on an
improper basis. It was not unduly inflammatory evidence, and the evidence
was directly relevant to the charged offense. Furthermore, even if there was
some risk of unfair prejudice from this evidence, that risk did not
substantially outweigh the probative value of the evidence. Therefore the
evidence was not unfairly prejudicial and as such since it was relevant and
was not unfairly prejudicial it was properly accepted into evidence.
In the alternative any error from the admission of this evidence was
harmless because it would only have been error to admit the evidence if the
State’s other evidence was so overwhelming the State did not need this
evidence, and if the remainder of the State’s case was that overwhelming
then the admission of this evidence could not have had any impact on the
verdict. This is because if the remainder of the State’s case had
overwhelming evidence of Appellant’s guilt then he would have been found
guilty whether the challenged evidence was admitted or not.
ARGUMENT
I. The trial court did not abuse its discretion in allowing the
admission of evidence that Appellant had swallowed narcotics right
before being confronted by the police.
The trial court acted well within its discretion in determining that the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
13
evidence concerning Appellant having swallowed cocaine and other
narcotics prior to being contacted by the police was neither irrelevant nor
unfairly prejudicial.
The test for relevance is whether a reasonable person would believe the
particular piece of evidence is helpful in determining the truth or falsity of
any fact that is of consequence to the case. See Montgomery v. State, 810
S.W.2d 372, 376 (Tex. Crim. App. 1990). Nor does evidence have to be
dispositive of an issue to be relevant. Evidence merely tending to affect the
probability of the truth or falsity of a fact in issue is still relevant.
Montgomery, 810 S.W.2d at 376. All the evidence has to do is provide a
“small nudge” towards proving or disproving some fact of consequence. Id.
This broad definition of relevance allows a liberal policy of admission of
evidence for the jury’s consideration. Morales v. State, 32 S.W.3d 862, 865
(Tex. Crim. App. 2000). Furthermore, understanding that reasonable people
may disagree on “whether a particular inference is available”, appellate
courts are not to disturb a trial court’s determination of relevance so long as
the trial court’s ruling was “within the zone of reasonable disagreement.”
Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
In the present case there was no serious dispute that the seized
contraband was cocaine. There was no serious dispute that the cocaine was
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
14
lawfully obtained pursuant to a valid stop and search. And there was no
serious dispute concerning the identity of the Appellant. Therefore the
critical issue in this case was whether or not Appellant was in possession of
the narcotics found within his vehicle.
The State could not prove Appellant was the person in possession of
the contraband solely by showing the drugs were located in his vehicle or by
showing that Appellant was found in close proximity to those drugs. It is
well settled Texas law that when a defendant is not in exclusive possession
of the place where contraband is located, the defendant’s presence at the
location is by itself insufficient as a matter of law to establish the defendant
had knowledge or control over the contraband. See Cude v. State, 716 S.W.
2d 46, 47 (Tex. Crim. App. 1986). Rather in such circumstances the State
must present some evidence, either direct or circumstantial, beyond mere
proximity to the drugs to establish an affirmative link between the accused
and the contraband in order to prove possession beyond a reasonable doubt.
See Evans v. State, 202 S.W.3d 158, 161-162 (Tex. Crim. App. 2006).
Here, Appellant did not have exclusive possession of the place where
the contraband was located. He was not alone in his vehicle at the time the
drugs were found there but rather had a passenger, Brittany Williams, who
was located just as close if not closer to the contraband narcotics as he was.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
15
[RR-III-39, 61]. Furthermore, it was certainly plausible to believe that Ms.
Williams could be in possession of the narcotics as she was on parole for a
prior felony conviction for drug trafficking at the time of this offense. [RR-
III-95]. And Appellant largely centered his entire defense strategy on that
exact ground: disputing possession of the narcotics by repeatedly insisting or
implying throughout his opening argument, through the cross-examination
of the State’s witnesses, and in his closing argument that the seized drugs
actually belonged to Ms. Williams. [RR-II-149, III-33-34, 39, 41, 44-46,
60-61, 107, 111-112, 129, IV-109-110, 116].
Therefore the State needed evidence to establish an affirmative link
between Appellant and the illegal narcotics. Evidence that, mere seconds
before he was to be questioned by the police, Appellant swallowed narcotics
(including the very substance, cocaine, that was found hidden in great
quantities in Appelant’s vehicle) was strong evidence to establish that
required affirmative link.
There was specific evidence to suggest that the drugs Appellant
swallowed were part of the same consignment of drugs as the other drugs
located in Appellant’s vehicle. Sergeant Randolph’s testimony established
that Appellant suffered a seizure after over nine hours in police custody.
[RR-III-114, 121]. Dr. Cano likewise explained that a seizure could still
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
16
occur ten hours after swallowing cocaine if there was a delayed release of
cocaine into the bloodstream. [RR-III-171]. Dr. Cano then further
established that wrapping cocaine in plastic would help delay its release into
the bloodstream. [RR-III-172]. From this, it would be logical to infer that
the cocaine Appellant swallowed must have been wrapped in plastic, and
that in turn makes it very likely the drugs Appellant swallowed were part of
the same consignment of drugs as the drugs that were found in Appellant’s
vehicle. It is likewise a logical inference that the same type of drugs
(cocaine), that were both present in the same automobile at the same time,
were both within arms distance of the same defendant, were both hidden
from view, and were both wrapped in plastic, must have been part of the
same consignment of drugs. [RR-III-161, 166-167]. And if Appellant had
control over part of the consignment (which he obviously did since he was
able to swallow that portion of the consignment) then it is likewise
reasonable to conclude that he must have had control over the rest of the
consignment as well.
The evidence suggesting that both the drugs Appellant swallowed and
the drugs that were located in the DVD slot of Appellant’s vehicle were part
of the same consignment of drugs is circumstantial. However, fact-finders
are permitted to make reasonable inferences from circumstantial evidence
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
17
and to “draw reasonable inferences from basic facts to ultimate facts.” See
Hooper v. State, 214 S.W.3d 9, 13-14 (Tex. Crim. App. 2007). Moreover,
the fact finder is also permitted to draw multiple reasonable inferences from
the evidence, so long as each inference is supported by the evidence at the
trial. Id. at 15-16. Each inference that is necessary to come to the
conclusion that Appellant had knowledge and control of the narcotics found
in the DVD slot of his vehicle based upon him having swallowed narcotics
right before being stopped by the police, is a reasonable inference that is
supported by the evidence. Therefore the evidence that Appellant
swallowed some of the cocaine was directly relevant for establishing one of
the elements of the charged offense: that he had knowing possession over
the rest of the cocaine that was found in his vehicle.
The evidence that Appellant swallowed some benzodiazepines and
PCP was similarly relevant. The Court of Criminal Appeals has already
accepted that evidence that a defendant uses and sells one type of drug can
be relevant to establish he possesses another illegal drug. See Rogers, 853
S.W.2d at 32. If evidence of possessing one drug can be relevant to prove
possession of another drug than logically evidence that a defendant
swallowed drugs immediately prior to being contacted by the police should
also be held as relevant to show that the defendant has control over the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
18
nearby hidden drugs even if some of the drugs Appellant swallowed are a
different substance than the hidden drugs that were located.
Furthermore, attempting to destroy or conceal evidence has long been
considered consciousness of guilt evidence. See Sanchez v. State, 2015 WL
2353382, 13-12-00603-CR at 10 (Tex. App.-Corpus Christi 2015, pet.
filed)(mem. op. not designed for publication); Ethridge v. State, 795 S.W.2d
281, 285 (Tex. App.-Houston [14th Dist.] 1990, pet. dism'd, 812 S.W.2d 600
(Tex. Crim. App. 1990) (en banc). Consciousness of guilt evidence is one
of the strongest kinds of evidence of guilt. Hyde v. State, 846 S.W.2d 503,
505 (Tex. Crim. App. 1993). Thus evidence that Appellant was actively
attempting to destroy (or at least conceal within his body) evidence of
narcotics at the crime scene was very powerful evidence for showing that
Appellant had knowledge and control over the narcotics hidden within his
vehicle.
Therefore the evidence that Appellant swallowed a quantity of cocaine
and other narcotics immediately prior to being contacted by the police was
clearly helpful in determining the truth or falsity of a fact that was of
consequence to the case, specifically whether or not Appellant had knowing
possession of the narcotics found in his vehicle. That means that evidence
was relevant.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
19
Proving possession is not the only grounds for which this evidence was
relevant though; the evidence was equally relevant for helping shore up the
credibility of one of the State’s key witnesses, Ms. Brittany Williams.
Brittany Williams testified not only to observing Appellant swallow
some unknown object [RR-III-90] but also to the fact that she did not
possess or even know about the narcotics located within the vehicle. [RR-
III-98]. Her testimony disclaiming possession and knowledge of the
narcotics was critical, since, as already discussed, Brittany Williams was
otherwise a plausible alternative suspect for the possession of the narcotics
at issue in this case.
Appellant clearly recognized the importance of Brittany Williams’
testimony and her potential as an alternative suspect to explain the presence
of the narcotics as Appellant proceeded to relentlessly attack Brittany
Williams’ credibility though out the proceedings. In his opening argument
Appellant pointed out that Ms. Williams was also initially charged with this
offense and then stressed that she was on parole for delivery of cocaine.
[RR-II-148]. Appellant then asserted his theory that it was Ms. Williams
who was actually in possession of the contraband narcotics found in the
vehicle and stressed her close proximity to the narcotics at issue in the case.
[RR-II-149-150]. Appellant continued these arguments throughout the trial,
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
20
repeatedly referencing her criminal record and implying she was the person
who actually possessed the narcotics. [RR-III-41, 73, 99-102, 107-109].
And Appellant hit these points hard throughout his closing argument, where
he again repeatedly attack Brittany Williams’ credibility. [RR-IV-102-105,
108, 114, 116]. Furthermore, Appellant’s closing argument specifically
argued that “this case really boils down to you believe Brittany Williams or
you don’t believe Brittany Williams.” [RR-IV-117]. Therefore Brittany
Williams’ credibility was clearly a critical issue in this case and the linchpin
of the defense strategy. And more to the point this was an eminently
sensible strategy on the Appellant’s part for if the jury had disbelieved
Brittany Williams’ testimony then there was a very real chance they would
have acquitted.
Since Ms. Williams’ testimony was key in this trial, the evidence that
Appellant had cocaine, benzodiazepines, and PCP in his system was highly
relevant because it helped substantiate her testimony and thus helped
establish her credibility. State’s Exhibits 20 and 21 and the testimony of
Sergeant Randolph and Dr. Cano were key for proving that Ms. Williams
was telling the truth about observing Appellant swallow something in the
car. The most logical inference from Ms. Williams’ observation in the car
was that Appellant swallowed a quantity of narcotics, since Appellant would
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
21
have no reason to frantically try and swallow something that was not
contraband. Moreover, the possibility that Appellant had swallowed
narcotics was confirmed by the hospital records and the testimony of
Sergeant Randolph and Dr. Cano which established that several narcotics
were found in Appellant’s system, right after Appellant had suffered seizures
that were consistent with the consumption of cocaine and PCP and which
occurred within a time frame that was consistent with Appellant having
swallowed cocaine wrapped in plastic the night before. [RR-III-121, 124-
125, 165, 171-172, State’s Exhibits 20-21].
The fact that Ms. Williams was being truthful about having seen
Appellant swallow something made the remainder of her testimony where
she denied having possession of the narcotics found in the vehicle far more
credible. It not only showed that Ms. Williams was being truthful about
what she had seen that night, but it also rebutted the idea that her motive in
telling the police about Appellant swallowing something was done to curry
favor with law enforcement or to shift the blame from herself to the
Appellant. Instead it helped prove that her motive in reporting what she saw
Appellant do to Sergeant Randolph was a genuine desire to get her cousin
needed medical assistance. [RR-III-96, 127-128]. Thus the contested
evidence helped shore-up the testimony of a key State’s witness and directly
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
22
helped rebut one of the main defense arguments in the case (that Ms.
Williams was testifying against the Appellant simply to protect herself from
criminal prosecution.)
This was clearly proper evidence for the State to present. As a general
rule, the State is entitled to present evidence that tends to refute a defensive
theory. See Marles v. State, 919 S.W.2d 669, 672 (Tex. App.-San Antonio
1996, pet. ref’d). This principle holds true even when the rehabilitative
evidence includes extraneous offense evidence. See Yohey v. State, 801
S.W.2d 232, 236 (Tex. App.-San Antonio 1990, pet. ref’d); Davis v. State,
979 S.W.2d 863, 867 (Tex. App.-Beaumont 1998, no pet). And the defense
attacking the credibility of one of the State’s key witnesses justifies the
introduction of extraneous offense evidence when that evidence helps bolster
the credibility of the State’s witness. See Smith v. State, 211 S.W.3d 476,
480-481 (Tex. App.-Amarillo 2006, no pet); see also Montgomery, 810 S.W.
2d 372 (suggesting that it would be appropriate for the State to use
extraneous offense evidence to “shore up” the testimony of one of its
witnesses if the defense had actually impeached that witness.)
Thus the evidence about Appellant swallowing narcotics immediately
prior to his contact with the police was also helpful for determining the truth
or falsity of whether Brittany Williams’ testimony concerning whether she
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
23
had possession of the narcotics in the vehicle could be believed and since
that was also a major issue in the case, the contested evidence was also
relevant on that ground.
Accordingly, the evidence of Appellant’s actions in swallowing
narcotics prior to being contacted by the police was clearly relevant
evidence. It helped established the affirmative link necessary to prove the
possession element of the offense, and it helped substantiate the credibility
of a key State’s witness whose credibility was under heavy attack by the
defense. The evidence was therefore relevant on two important issues. It
also helped give full context to the events surrounding Appellant’s arrest and
was therefore also important to enable the fact finder to understand exactly
what happened at the time of Appellant’s stop and arrest. Accordingly, the
challenged evidence was highly relevant and as such the trial court did not
abuse its discretion in finding this evidence relevant, and since the trial
court’s determination of relevance is entitled to great deference, that
determination of relevance should be upheld.
Of course just because evidence is relevant does not automatically
render it admissible. Relevant evidence can still be deemed inadmissible if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
24
considerations of undue delay, or needless presentation of cumulative
evidence. See TEX. R. EVID. 403; Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007). Thus it is also necessary to consider if this
evidence though relevant was unfairly prejudicial.
Under Texas Rule of Evidence 403, evidence is only to be excluded for
“unfair prejudice” if the probative value of the evidence is “substantially
outweighed” by its danger of unfair prejudice. See also Feldman v. State, 71
S.W.3d 738, 754 (Tex. Crim. App. 2002). “Probative value” refers to how
strongly an item of evidence serves to make more or less probable a fact of
consequence to the litigation, coupled with the proponent’s need for the item
of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App.
2006). “Unfair prejudice” refers to a tendency to suggest deciding the case
on an improper basis. Id. In evaluating the relative probative value versus
the unfairly prejudicial effect of evidence, a trial court’s determination is
only to be reversed after a “clear abuse of discretion.” Mozon v. State, 991
S.W.2d 841, 847 (Tex. Crim. App. 2004).
The Gigliobanco case established six factors trial courts are to consider
in determining if evidence is inadmissible under Rule of Evidence 403.
Gigliobanco, 210 S.W.3d at 641-642. However, Appellant’s brief only
raised two of those factors (thus implicitly conceding the other four factors).
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
25
It is clear in considering the applicable Gigliobanco factors that the trial
court did not abuse its discretion in this case in finding the contested
evidence was not unfairly prejudicial.
Appellant’s two grounds for finding the evidence of Appellant
swallowing narcotics was unfairly prejudicial were: 1) that the State did not
need the evidence, and 2) that the evidence created a risk that the jury would
convict on an improper basis. Neither of those grounds forms a basis for
overturning the trial court’s ruling given the specific facts of this case.
As to the Appellant’s first ground, the State clearly had a compelling
need for the contested evidence. As already mentioned, the mere fact that
the drugs were found near Appellant was insufficient as a matter of law by
itself to prove he was in possession of the drugs. Cude, 716 S.W. 2d at 47.
Therefore the State needed some additional evidence to link Appellant to the
drugs and, given the presence in the vehicle at the time of the police stop of
a second person, who was not merely a convicted felon, but who actually
was a convicted drug trafficker, this linkage evidence was going to have to
be highly compelling to be able to convince a jury beyond a reasonable
doubt that the drugs belonged to the Appellant.
Now admittedly, the State did have some other linkage evidence
beyond just the evidence of Appellant swallowing narcotics to help connect
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
26
the Appellant to the contraband narcotics. In addition to the evidence of
Appellant not immediately pulling over when signaled to by the police [RR-
II-154-155], there was also the testimony of Ms. Moya describing Appellant
fidgeting with the DVD player in his car earlier that day [RR-III-65, 67, 69],
and Ms. Moya’s assertion that she saw plastic within the DVD slot at that
time. [RR-III-68]. There was also the evidence of a tiny, “Batman baggie”
found on the Appellant’s person along with $404. [RR-II-178-179]. And
there was evidence of a digital scale of the type used by drug traffickers that
was located in Appellant’s vehicle. [RR-II-167-168].
However, while this evidence could have theoretically linked
Appellant to the narcotics found in the DVD slot, in practice none of this
evidence was particularly compelling as the defense strongly attacked each
of these evidentiary points.
Appellant’s counsel provided a plausible explanation for why
Appellant did not immediately stop his vehicle: that since it was nighttime
Appellant wanted to stop his vehicle under a street light. [RR-III-26-27, IV-
100-101]. The testimony of Ms. Moya was subject to powerful
impeachment given that Ms. Moya was herself a convicted thief [RR-III-70],
and had a plausible compelling motive to lie given her very close friendship
to Ms. Williams. [RR-III-72]. The “Batman baggie” was not intrinsically a
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
27
contraband item and nothing suspicious was found inside of it. [RR-III-50].
The money seized from Appellant had limited probative value, both due to it
being a comparatively small amount ($404 is certainly not nothing, but it is
not such a large amount either that it automatically screams drug trafficker),
and due to the defense strongly attacking the government’s investigation for
not having drug detecting dogs smell the money to determine if it had ever
been near narcotics. [RR-III-16-20]. And the digital scale was found in a
location that was just as close to Ms. Williams as it was to the Appellant,
and thus was just as capable of supporting Appellant’s theory that the drugs
belonged to Ms. Williams as supporting the State’s contention that the drugs
belonged to the Appellant. [RR-III-33-34].
Therefore none of the alternative linkage evidence options the State
had available were particularly compelling, and as such the State had a
substantial need for stronger, more convincing evidence that would
conclusively link Appellant to the contraband narcotics and could not be
explained away by the defense. The evidence that Appellant had swallowed
some drugs right before being contacted by the police was this stronger,
more convincing linkage evidence. Appellant could explain away or attack
his not immediately stopping, Ms. Moya’s testimony, the “Batman baggie”
the money, and the digital scale but he had no good explanation for the drugs
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
28
that were inside his own body, especially since the medical evidence made it
clear those drugs had only recently been ingested. And in fact the evidence
of Appellant swallowing the narcotics proved so compelling and so
irrefutable that Appellant did not even attempt to dispute it, but rather
conceded right away in his opening argument that he had swallowed some
drugs and instead just tried to argue that he had only swallowed the drugs at
the request of Ms. Williams. [RR-II-149].
The evidence of Appellant swallowing the narcotics was the strongest
evidence the State had for providing an affirmative link between Appellant
and the contraband found in his vehicle as it was the only linkage evidence
in this case that the defense could not plausibly challenge. And since the
Appellant did attack all of the State’s other linkage evidence, this evidence
clearly had great probative value. See Johnson v. State, 68 S.W.3d 644,
651-652 (Tex. Crim. App. 2002)(holding that when the defense challenges
the probative value of the State’s other evidence addressing a certain issue
then extraneous offense evidence that also helps prove the disputed issue
becomes much more probative.) Thus the State clearly had substantial need
of this evidence to prove the possession element of the charged offense.
Additionally, even if there was some other evidence, weak though it
may have been, to establish an affirmative link between the Appellant and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
29
the narcotics in the DVD slot, the evidence of Appellant swallowing the
narcotics was the only evidence the State had that could help substantiate
Ms. William’s testimony and rebut the defense theory that she was lying and
that she was the true possessor of the contraband narcotics. As already
discussed, the defense’s entire strategy was based on attacking Ms.
Williams’s credibility and trying to argue that she was the person who
actually possessed the narcotics at issue in this case. Therefore being able to
validate her testimony was essential to the State’s case. The evidence of
Appellant swallowing an unknown object (which subsequent medical
testimony established must have been narcotics) was not merely the best
evidence the State had to validate Ms. William’s testimony, it was the only
evidence the State had that could do that and as such it was the only
evidence the State had that could conclusively disprove the defense theory
that Ms. Williams was the person who actually possessed the narcotics that
night. The State had no other way to do this. There were no other witnesses
in the car that the State could call, and certainly without outside
confirmation from a reliable source Ms. William’s testimony would be
highly suspect given her criminal record and her having a clear, compelling
motive to lie so that she could avoid prosecution herself. Therefore since
Ms. William’s credibility was such an important issue in the trial, and since
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
30
the evidence of Appellant swallowing the narcotics was the only evidence
the State had to show Ms. Williams was testifying truthfull, the State had
great need of this evidence on that ground as well.
Thus with the State clearly having a compelling need for the
challenged evidence, it becomes necessary to consider Appellant’s second
claim of unfair prejudice, that the evidence created a grave danger of the
jury making its decision on an improper basis, and on that point there was
little danger of this evidence improperly influencing the jury.
The State was not offering evidence of some disparate criminal
episode that was unconnected to the charged offense in time or space. Quite
the contrary, the challenged evidence stemmed from Appellant’s actions
which occurred contemporaneous with the charged offense. Moreover the
evidence was persuasive that the drugs Appellant swallowed were in fact
part of the exact same consignment of drugs at issue in this case as they were
similarly wrapped, were located in the same area at the same time, and both
the swallowed drugs and the hidden drugs included cocaine. Thus this
evidence related directly to the charged offense. Evidence that relates
directly to the charged offense does not have great potential to impress the
jury in an irrational way. State v. Mechler, 153 S.W.3d 435, 440-441 (Tex.
Crim. App. 2005).
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
31
Nor was the evidence that Appellant had consumed some drugs
particularly inflammatory. The challenged evidence was not any more
heinous than the charged offense. As such the risk that the jury would
consider the evidence that Appellant had swallowed some narcotics in an
irrational way was slight. See Rogers v. State, 2006 WL 240229, 2-04-529-
CR at 8 (Tex. App.-Ft. Worth, no pet)(mem. op. not designated for
publication).
As such even if the evidence that Appellant swallowed some narcotics
right before being contacted by the police is deemed to have some risk of
unfair prejudice, that risk is still substantially outweighed by the probative
value of the evidence. Rule of Evidence 403 requires the probative value of
evidence to be substantially outweighed by the danger of unfair prejudice.
In this case the probative value of the challenged evidence was extremely
high both as the strongest evidence for establishing the affirmative link
required to prove Appellant had knowing possession of the narcotics found
inside the vehicle and also as the only evidence for rehabilitating Brittany
Williams’ credibility after it was attacked by the defense. Thus it would
take extremely prejudicial evidence to substantially outweigh the probative
value of this evidence. Evidence of other drug use is not nearly so
inflammatory as to constitute extreme prejudice and thus the danger of
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
32
unfair prejudice from this evidence clearly did not substantially outweigh the
probative value of the evidence.
Therefore the trial court also acted well within its sound discretion in
finding the evidence of Appellant swallowing narcotics immediately prior to
being contacted by the police was not unfairly prejudicial. And since the
evidence was relevant and was not unfairly prejudicial, it was properly
accepted into evidence, and the trial court’s ruling admitting that evidence
should therefore be affirmed.
II. In the alternative, any error from the admission of the evidence of
Appellant swallowing narcotics immediately prior to being
contacted by the police was harmless.
In the alternative, even if there was error in the admission of the
evidence of Appellant swallowing the narcotics, that error is harmless given
the overwhelming other evidence of Appellant’s guilt.
The erroneous admission of evidence is non-constitutional error under
Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Ketchum v.
State, 199 S.W.3d 581, 593 (Tex. App.-Corpus Christi 2006, pet. ref’d). A
criminal conviction should not be overturned for non-constitutional error if
the appellate court, after examining the record as a whole, has fair assurance
that the error did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Casey, 215 S.W.3d at 885.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
33
In the present case, the State believes the objected to evidence was
powerful evidence that was highly relevant for establishing both that there
was an affirmative link between Appellant and the contraband and for
proving that the testimony of Brittany Williams can be believed. However,
Appellant’s brief contends the State did not actually need the objected to
evidence. Should this Honorable Court accept that argument and agree with
Appellant that the State did not actually need this evidence, than logically
the admission of the evidence must have been harmless. After all, if the
State did not need this additional evidence that can only mean that the
remainder of the State’s evidence was overwhelming for establishing
Appellant’s guilt. (If the remainder of the State’s evidence was not
overwhelming for proving Appellant’s guilt then it obviously cannot be
argued that the State did not need this additional evidence. The additional
evidence would only not be needed if the State had already conclusively
proven Appellant’s guilt without it.) And if the remainder of the State’s
evidence was overwhelming evidence of guilt than the objected to evidence
could not have impacted the verdict. See Gonzalez v. State, 2014 WL
4049800, 13-13-00427-CR at 14 (Tex. App.-Corpus Christi 2014, pet.
ref’d)(finding that even in a case where the erroneously admitted evidence
“played a large part in the State’s case” the admission of that evidence was
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
34
still harmless given the extent of the State’s other evidence.”)
Appellant simply cannot have it both ways. Either the State’ other
evidence was not overwhelming, in which case the State did have a
legitimate need for the objected to evidence which means that evidence was
not unfairly prejudicial and thus was properly admitted, or the State’s other
evidence was overwhelming in which case the admission of the challenged
evidence did not affect the verdict because the Appellant would have been
found guilty regardless of whether the evidence was admitted or not. Under
either option Appellant is not entitled to any relief, and as such the trial
court’s judgment should be affirmed.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
35
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court affirm the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLEE,
THE STATE OF TEXAS
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
36
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellee’s Brief submitted on
July 17, 2015, excluding those matters listed in Rule 9.4(i)(1) is 7,461.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
37
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
W. A. White, P. O. Box 7422, Victoria, Texas 77903, Attorney for the
Appellant, James Cortney Dean, by electronic mail on the day of July 17,
2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-15-00110-CR
38