Stephanie Maie Heintzlemann v. State ( 2015 )

ACCEPTED
03-15-00258-CR
8080310
THIRD COURT OF APPEALS
N O . 03>15-00258-CR AUSTIN, TEXAS
12/3/2015 4:11:13 PM
JEFFREY D. KYLE
CLERK
I N T H E C O U R T O F APPEALS
O F T H E T H I R D D I S T R I C T O F TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
12/3/2015 4:11:13 PM
STEPHANLE M A I E H E I N T Z L E M A N N , JEFFREY D. KYLE
Clerk
Appellant
V.
T H E STATE O F TEXAS
Appellee
Appeal i n Cause N o . 42636 i n the
3 3 ^ Judicial District Court o f Burnet County, Texas
Brief For Appellee
OFFICE OF D I S T R I C T A T T O R N E Y
33" and 424'^ J U D I C L \ D I S T R I C T S
Gary W . Bunyard
Assistant District Attorney
P. O . Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
State Bar. N o . 03353500
A T T O R N E Y FOR APPELLEE
December 03, 2015
Oral Argument Waived
Identity Of The Parties
Trial Court
Honorable J. Allan Garrett
424'^ Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
State/Appellee
Blake Ewing (Pre-Trial and Trial Counsel)
Assistant District Attorney (former)
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 24076376
Richard S. Crowther (Pre-Trial and Trial Counsel)
Assistant District Attorney (former)
1701 E. Polk St., Suite 24
Burnet, T X 78611
(512) 756-5449
State Bar N o . 05174200
Gary W . Bunyard (Appellate Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
ii
Appellant
Richard D . Davis (Pre-Trial and Trial Counsel)
P.O. Box 398
Burnet, Texas 78611
(512)756-5117
State Bar N o . 05537100
Barton Joseph Vana (Trial Counsel)
101 Highway 281 N o r t h , Suite 205C
Marble Falls, Texas 78654
(830)385-2694
State Bar N o . 24084441
Alice Price (Appellate Counsel)
Attorney at Law
408 South Liveoak
Lampasas, Texas 76550
State Bar N o . 00786177
Stephanie Maie Heintzleman (Appellant)
T D C J N o . 01984380
SID N o . 50365208
William P. Hobby U n i t
742 F M 712
M a r l i n , T K 76661
Table Of Contents
Page
Index o f Authorities v
Statement o f the Case 1
Statement on Oral Argument 1
Response to Issues Presented 2
Statement o f the Facts 3
Summary o f the Argument - Issue N o . 1 5
There are sufficient affirmative links between Appellant and
the contraband to support a conviction for Possession
o f a Controlled Substance, Penalty Group 1 -
Methamphetamine, I n A n Amount o f One Gram or More
But Less Than Four Grams W i t h Intent to Deliver.
Argument on Issue N o . 1
1.1 Principals of Law 6
1.2 Applicable Facts 9
13 Discussion and Conclusion 10
Prayer for Relief. 14
Certificate o f Word Count 15
Certificate o f Service 15
iv
Index Of Authorities
Case Law Page
Brooks V. State, 323 S.W.3d 893 (Tex. C r i m . App. 2010)
Cedano v. State, 24 S.W.3d 406,411 (Tex. App.—
Houston [1st Dist.] 2000, no pet.)
Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—
Houston [1st Dist.] 1989, pet. ref d) 8
Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m . App. 1974) 6
Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—
Houston [1st Dist.] 1994, pet. ref d) 8
Hernandez v. State, 538 S.W.2d 127 (Tex. C r i m . App. 1976). 6
Jackson V. Virginia, 443 U.S. 307; 99 S. Ct. 2781;
61 L . Ed. 2d 560 (1979) 6
Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m . App. 1983) 7
Lafoon v. State, 543 S.W.2d 617 (Tex. C r i m . App. 1976) 6
Washington v. State, 902 S.W.2d 649, 652 (Tex. App.—
Houston [14th D i s t ] 1995, pet. ref d) 8
Constitutions
None cited
V
Statutes/Rules
Tex. Penal Code § 1.07 (39)
Tex. Penal Code § 6.01 (b)
Tex Penal Code § 7.02 (a)(2)
Treatises/Publications
None cited
statement Of The Case
Appellant has reasonably stated the Statement o f the Case.
Statement on Oral Argument
The undersigned waives Oral Argument. The undersigned does not believe that
Oral Argument w i l l be beneficial for this case for the reason that the issues contain
complex nuances and the Appellant has waived Oral Argument as well. I n such
event that this Court should believe that Oral Argument would assist the Court, the
undersigned w i l l gladly participate.
1
R e s p o n s e to I s s u e s Presented
Issue N o . One: There are sufficient affirmative links between Appellant and
the contraband to support a conviction for Possession o f a Controlled
Substance, Penalty Group 1 - Methamphetamine, I n A n Amount o f One
Gram or More But Less Than Four Grams W i t h Intent to Deliver.
2
statement Of TIte Facts
Appellant has not adequately described the Statement of the Facts.
On February 15, 2014, Granite Shoals Police Officer Robert Chrane conducted
a traffic stop on a 1998 Pontiac Grand A m w i t h i n Granite Shoals, Texas. RR
Vol. 3 Pages 95 - 96. The vehicle was being operated by Grant Cole. RR Vol. 3
Page 97. Appellant was the passenger and the owner o f the vehicle. RR Vol. 3
Pages 9 8 , 1 0 9 - 112.
The operator, Grant Cole, was arrested for outstanding warrants, RR Vol. 3
Page 97. Granite Shoals Sergeant Chris Decker made contact w i t h Appellant and
determined that the majority o f the contents of the vehicle belonged to Appellant.
RR Vol. 3 Pages 109 - 112. Sergeant Decker asked Appellant for consent to search
the vehicle and Appellant granted this request. RR Vol. 3 Page 114.
In a bag that was located between Appellant's leg and the center console, Sergeant
Decker found a soda straw that had been modified i n a way that it could be used for
ingesting powder-like substances. RR Vol. 3 Page 116. Inside the straw was a
powdery residue. RR Vol. 3 Page 116. Also inside this bag were two glass pipes,
one containing suspected methamphetamine and the other containing marihuana.
3
RR Vol. 3 Page 118. Also located i n this bag were female items such as sunglasses
and makeup, things o f that nature. RR Vol. 3 Page 116, 161.
I n a "cheetah print" bag located i n the passenger compartment o f the vehicle.
Sergeant Decker found plastic baggies containing numerous small babies w i t h clear
crystal substance inside. RR Vol. 3 Page 121. These were jeweler-style baggies,
small zip-style babies, w i t h i n a larger jewelry-style baggie as well as a $50 bill and
$1 bill inside that drawstring pouch w i t h both o f the bills contained crystalized
substance on the surface o f what obviously under the flashlight o f having some sort
o f crystallized substance on them. RR Vol. 3 Pages 121 - 122, 125 - 126. This bag
was observed by Sergeant Decker to originally be located underneath Appellant's
legs i n front o f the passenger seat. RR Vol. 3 Page 121,152, 160 - 161.
Officer Chrane, while assisting w i t h the search, found i n the center console a
glass pipe w i t h a bowl at the end that contained powdered residue that was believed
to be methamphetamine. RR Vol. 3 Page 99.
The suspected methamphetamine was tested at the DPS Crime Lab and
determined to contain 3.52 grams o f methamphetamine. RR Vol. 4 Pages 16 - 19.
4
Summary Of The Argument on Issue No, 1
There are sufRcient affirmative links between Appellant and the
contraband to support a conviction for Possession of a Controlled
Substance, Penalty Group 1 - Methamphetamine, In An Amount of
One Gram or More But Less Than Four Grams With Intent to
Deliver.
Appellant argues that there is no evidence o f an affirmative link or connection
between Appellant and the contraband under the "Link Doctrine". Appellee asserts
that there is ample circumstantial evidence to support the jury's verdict that
Appellant is Guilty o f this offense.
5
Argument On Issue No, i
1.1 Principals of Law
O n the question o f sufficiency o f the evidence, the relevant question is whether,
after viewing the evidence i n the light most favorable to the prosecution, any rational
trier o f fact could have found the essential elements o f the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; 99 S. Ct. 2781; 61 L . Ed.
2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 900 (Tex. C r i m . App. 2010). This
standard gives full play to the responsibility o f the trier o f fact fairly to resolve
conflicts i n the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Id. Once a defendant has been found guilty o f
the crime charged, the factfinder's role as weigher o f the evidence is preserved
through a legal conclusion that upon judicial review all o f the evidence is to be
considered i n the light most favorable to the prosecution. Id.
The j u r y may believe some witnesses and refuse to believe others, and it may
accept portions o f the testimony o f a witness and reject other portions. Lafoon v.
State, 543 S.W.2d 617 (Tex. C r i m . App. 1976); Hernandez v. State, 538 S.W.2d 127
(Tex. C r i m . App. 1976); Esquivel v. State, 506 S.W.2d 613 (Tex. C r i m . App. 1974).
6
The term "possession" means actual care, custody, and control. Tex. Penal Code
§ 1.07 (39).
Possession is a voluntary act i f the possessor knowingly obtains or receives the
thing possessed or is aware o f his/her control o f the thing for a sufficient time to
permit him/her to terminate his/her control. Tex. Penal Code § 6.01 (b).
A person is criminally responsible for an offense committed by the conduct o f
another if:
(2) acting w i t h intent to promote or assist the commission o f the offense,
he/she solicits, encourages, directs, aid, or attempts to aid the other person
to commit the offense.
Tex Penal Code § 7.02 (a)(2).
W h e n the accused is not i n exclusive possession o f the place where the
contraband is found, the State must show additional affirmative links between the
accused and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex.
App.—Houston [1st Dist.] 2000, no pet.). A n affirmative link generates a
reasonable inference that the accused knew o f the contraband's existence and
exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. C r i m . App.
1983).
Some relevant factors that may affirmatively link an accused to contraband
include: (1) the defendant's presence when a search is conducted; (2) whether the
contraband was i n plain view, (3) the defendant's proximity to and the accessibility
o f the narcotic; (4) whether the defendant was under the influence o f narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor o f contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant owned
or had the right to possess the place where the drugs were found; (12) whether the
place where the drugs were found was enclosed; (13) whether the defendant was
found w i t h a large amount o f cash; and (14) whether the conduct o f the defendant
indicated a consciousness o f guilt. Washington v. State, 902 S.W.2d 649, 652 (Tex.
App.—Houston [14th Dist.] 1995, pet. refd); Chavez v. State, 769 S.W.2d 284,
288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. refd). The number o f linking
factors present is not as important as the "logical force" they create to prove the crime
was committed. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st
Dist.] 1994, pet. refd).
8
12 Applicable Facts
Appellant was the passenger and the owner o f the vehicle at the time o f the traffic
stop. RR V o l . 3 Pages 98,109 - 112. Appellant told officers that the majority o f the
personal items i n her vehicle belonged to her. RR Vol. 3 Pages 109 - 112. The
only other occupant i n the vehicle. Grant Cole, testified at trial that all o f the bags
which contained narcotics entered into evidence belonged to h i m despite the fact
that they were "girlie" i n nature. RR Vol. 4 Page 26.
After denying that contraband is present i n the vehicle. Appellant gave consent
for the officers to search Appellant's vehicle and belongings. RR Vol. 3 Page 114.
I n a bag that Sergeant Decker had observed was under Appellant's legs i n front
o f the passenger seat while Appellant was still i n the vehicle, officers found the 3.52
grams o f methamphetamine that is the subject o f this prosecution together w i t h
drug paraphernalia. RR Vol. 3 Page 121, 152, 160 - 161; Vol. 4 Page 17.
Located i n a second bag which was observed to also be i n the front passenger
compartment and was situated between Appellant's leg and the center console was
various items o f drug paraphernalia and female items. RR Vol. 3 Page 116, 118,
161.
A t trial the driver o f the vehicle, Grant Cole, testified that the narcotics and the
meth pipe all belonged to h i m and that Appellant had no knowledge o f the items.
9
RR V o l . 4 Pages 24 - 26. Cole testified that when the officer turned o n his lights,
Cole removed the drugs from his pants pocket and put them i n a pouch/bag i n the
back seat without Appellant's knowledge. RR V o l . 4 Pages 24 - 25, 40.
O n cross-examination. Cole acknowledged that Appellant was w i t h Cole when
Cole purchased methamphetamine on a different occasion as well as the
methamphetamine that is the subject o f this case. RR Vol. 4 Pages 29 - 30, 38.
IJ Discussion and Conclusion
I n this case virtually the total argument o f Appellant is a loose comparison o f the
facts before the j u r y to each o f the non-exclusive factors to consider i n determining
possession. When referring to several o f the factors Appellant at times modified the
description o f the factor.
One significant point i n Appellant's argument is concerning the factor o f
consideration as to whether or not the accused the owner o f the premises.
Appellant's argument is that this case involved an automobile meaning that it was
not a premise that qualifies for consideration. Whether they may or may not be
technically called premises. Appellant was the acknowledged owner o f the vehicle
10
and o f the bag i n which the narcotics were found. Again, the list o f factors is non-
exclusive and there is no authority that the factfinder can not consider ownership o f
items capable o f containing contraband inside the items i n the same way that a
residence is considered as premises.
Another factor argued by Appellant is that the narcotics were found i n different
bags distributed throughout the vehicle and therefore not accessible to Appellant.
Yet a close review o f the record shows that the narcotics which are the subject o f this
prosecution were i n fact located i n one single, unlocked bag that was underneath
Appellant's legs i n the front passenger portion o f the vehicle. By having this bag
positioned between her legs and the seat, as opposed to be jumbled i n w i t h all o f the
other bags i n the back seat area, a rational j u r y could infer this to be an affirmative
act o f security on the part o f Appellant as well as a demonstration that the bag and
its contents were more important to Appellant than the other bags. One other bag
located between Appellant's leg and the center console contained paraphernalia w i t h
residue that was not tested by the laboratory and other paraphernalia w i t h untested
residue was found i n the center console.
Appellant next argues that because the paraphernalia was not i n plain sight it was
not "near" Appellant- The bulk o f the paraphernalia was i n the two unlocked bags,
which Appellant acknowledged to officers belonged to her and were both located by
11
Appellant's legs, one under the legs and one next to the legs, again an act a rational
j u r y could find to be a demonstration o f importance and security. The remaining
paraphernalia was inside the center console compartment which was i n Appellant's
car and next to Appellant's seat.
Appellant also argues that no bag was linked as Appellant's sole property. Yet
Appellant told the officers at the beginning o f the stop that the majority o f the bags
belonged to her. A t trial Appellant's only witness. Grant Cole, testified that he
owned all o f the "girlie" bags i n which the narcotics were located yet he also testified
that the bag i n which he hurriedly put the narcotics and the meth pipe was i n the
rear portion o f the passenger compartment. Under this record it was quite
reasonable for the j u r y to resolve this conflict i n favor o f conviction.
Also before the j u r y was Cole's acknowledgment that Appellant was w i t h Cole
on two occasions when Cole purchased methamphetamine. Once when Cole was
arrested for that possession and the other time when Cole purchased the
methamphetamine that is the subject o f this prosecution. A rational j u r y could infer
from this evidence that Appellant allowed Cole to place his narcotics i n her bag
located beneath her legs and was thereby acting w i t h intent to promote or assist Cole
i n the commission o f the crime by aiding or assisting h i m i n hiding and transporting
the narcotics, i f Appellant was not outright i n exclusive possession o f the narcotics.
12
Even i f the evidence presented through the testimony o f Grant Cole could
inferentially raise an issue as to whether Appellant's possession or control o f the
narcotics was involuntary, Appellant could have, from the outset, informed Sergeant
Decker that Cole had put drugs i n the bag i n front o f her seat which would be an act
o f termination o f the possession or control as contemplated i n Tex. Penal Code §
6.01 (b). However she did not do so which demonstrated the voluntariness o f her
possession and control o f the narcotics.
Considering all o f these facts which were before this jury, it is reasonable to
conclude that the j u r y resolved all conflicts i n the testimony, weighed the evidence,
and drew reasonable inferences from basic facts to ultimate facts i n rendering a
verdict o f Guilty. For these reasons the relief being requested by Appellant should
be denied and the judgment o f conviction and sentenced entered i n this cause be
affirmed.
13
PRAYER FOR R E L I E F
WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny
the relief requested by Appellant and affirm the judgment o f conviction and sentence
entered against Appellant.
Respectfully submitted,
OFFICE OF D I S T R I C T A T T O R N E Y
33" and 424'^ J U D I C I A L D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O . Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
Assistant District Attorney
State Bar N o . 03353500
g. bunyard @ CO. 1 lano .tx. us
A T T O R N E Y F O R APPELLEE
14
C E R T I F I C A T E OF WORD C O U N T
This is to certify that the pertinent portion o f this brief contains 2,247 words
printed i n Aldine401BT 14 font, according to the WordPerfect^" X 7 word count
tool.
C E R T I F I C A T E OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded on the 3rd day o f December
2015, to Alice Price, Attorney for Appellant, by email and by EServe.
Assistant District Attorney
15