Sellers, Stephen Kenneth Lane ( 2015 )

PD-0762-15
PD-0762-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/23/2015 1:39:45 PM
Accepted 6/24/2015 11:43:00 AM
ABEL ACOSTA
CLERK
NO. PI).
NTHE
COURT OF CRIMNAL APPEALS OF TEXAS
STEPHEN SELLERS
Appellant
v.
STATE OF TEXAS
Annellee
APPELLANT'S PETITION
FOR DISCRETIONARY REVIEW
Petition from the 19th Judicial District Court of Mclennan County, Texas
Trial Court Cause Number 20I3-2242-CI and
cause Number L0-r4-00226-cR in the Tenth court of Appeals of Texas
Chelsea Tijerina
State Bar No. 24076733
E-mail : attorneychelsea@gmail. com
Law Orrrcn oF SrMER &Tnrnxs
3706 Bellmead Drive
Waco, Texas 76705
June 24, 2015
(2s4) 412_2300
(888) 3 17 -7 61 0-Facsimile
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant, pursuant to Rule of Appellate procedure 3g.1(a), provides
the
following list of all parties to the trial court's judgment and the
names and addresses of
all trial and appellate counsel.
Appellant: Stephen Sellers
TDCJ # 0194890s
Joe F. Gurney Transfer Facility
1385 F.M. 3328
Palestine, Texas 75803
Trial Court Judge: Hon. Ralph Strother
l9th Judicial District Court Judge
Mclennan County Courthouse
501 Washington Avenue - Suite 303
Waco, Texas 7670I
Telephone: 254-7 57 -5091
Trial Counsel for Apoellant: Josh Tetens
Chelsea Tijerina
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephone: 254-412-2300
Appellate Counsel for Appellant: Chelsea Tijerina
Simer & Tetens
3706 Bellmead Drive
Waco, Texas 76705
Telephone: 254-412-2300
Trial Counsel for State: Robbie Moody
Evan OtDonnell
Mclennan County District Attorney's Office
219 North 6th Street, Suite 200
'Waco,
Texas 7670I
Appellate Counsel for State: Sterling Harmon
Gabriel Price
Mclennan County District Attorney,s Office
219 Norrh 6th Street" Suite 200
Waco, Texas 7670I
Sellers v. State-Appellant's Petition ior Discretionarv Review
Pege 1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COLNSEL .......... I
INDEX OF AUTHORITIES.. ............ 4
STATEMENT REGARDING ORAL ARGUMENT..... ............ 6
STATEMENT OF THE CASE/
STATEMENT OF PROCEDURAL HISTORY .......... 6
GROUND FOR REVIEW.. ........... 8
The Waco Court of Appeals disregarded established case law from
this
Court and from sister courts of appeal to find the evidence legally sufficient.
ARGUMENT..... ......8
I. Reason for Granting Review.
......9
il. Factual Basis. .........9
ru. Case Law
The distance between the defendant and the complaining witness
proves the seminal factor in determining whether a knife is a
deadly weapon. l3
IV. Conclusion 20
PRAYER FOR RELIEF.... 21
CERTIFICATE OF SERVICE. 2l
CERTIFICATE OF COMPLIANCE 22
Sellers v. State-Appellanfs Petition for Dissetionary Review
Page 2
APPENDD(: sellers v. state,No. 10-14-00226-CR 2015 Tex. App. LEXIS 4702 (Tex.
App.-Waco May 7,20I5,no pet. h.).
Sellers v. State-Appsllant's Petition for Discretionary Revisr
Page 3
INDEX OF AUTHORITIES
Texas Cases: Page No.
Alexander v. state,No. 10-10-00279-cR, 2012Tex.App. LEXIS 3125 (Tex.
App.-waco Apr. 18,2012, pet. ref d) (mem. op., not designated for publication)... .......
9
Alvarez v. state,566 s.w.2d 612 (Tex. crim. App. l97g) g, 9, 13, 15, 16, 17, lg,
lg
Broolcs v. state,323 s.w.3d 893 (Tex. crim. App. 2010) (plurality op.).. .... 19
citizens Nat'l Bank in waxahachie v. scott,195 s.w.3d 94 (Tex. 2006). ..... 19
Davidsonv. State,602 S.W.2d 272 (Tex. Crim. App. l9g0) ........ g. 13
Fregiav. State,185 S.W. 11 (Tex. Crim. App. 1916) .g,9, 13,!4,15, 19
Grover v. State,No. 14-04-00672-cR, 2005 wL 3435313 (Tex. App.-Houston
[14th Dist.] Dec. 15, 2005, pet. ref d) (mem. op., not designated for publication).. g, 9, 15
Herbert v. state,63l s.w.2d 585 (Tex. App.-El paso 19g2, no pet.).. ..... g, 9, 16
Lucero v. state,915 s.w.2d612 (Tex. App.-El paso 1996,pet.refd). ........ g. 9" 16
Luna v. State, No. 0 I -98-0 I 079-cR, 2000 wL 7 30661) (Tex. App.-Houston
[1st Dist.] June 8, 2000, no pet.) (mem. op., not designated for publication)... ....... g, 9, 16
McCain v. State,22 S.W.3d 497 (Tex. Crim. App. 2000) (en banc) 17. lg
Petrie v. state, No. 10-13-00004-cR, 20t4 Tex. App. LEXIS 2g2g (Tex. App.-
WacoMar.13,20|4,pet.refd)(mem.op.,notdesignatedforpublication)..
Rogers v. state,877 s.w.2d 498 (Tex. App.-Fort worth 1994,pet.refd). g, 9, 16
Wade v. State,951 S.W.2d 886 (Tex. App.-Waco 1997,petrefd)... . g. 9. 16
Federal Case: Page No.
Jaclcson v. Virginia, 443 U.S. 307 (1979) t9
Sellers v. State-Appellant's Petition for Discrelionary Review
Page 4
State Statutes: PageNo.
Trx. R. App. P. 47.4
19
TBx. R. App. P. 66.3
Miscellaneous: Page No.
43B George E. Dix et al., Texas Practice series: criminal practice and
Procedure g 57:32 (3d ed. 2013)...
20
Sellers v. State--Appeltant's Petition for Discretionary Reviow
Page 5
STATEMENT REGARDING ORAL ARGUMENT
TO TF{E HONORABLE JUDGES OF TI{E COURT OF CRIMINAL APPEALS:
Mr. Stephen Sellers requests that oral arguments be granted. Appellant
believes that this Court would benefit from arguments.
STATEMENT OF' PROCEDURAL HISTORY
This is a criminal case in which Stephen Sellers was convicted of
possession of a controlled substance in the amount of one gram or more but less
than four grams with intent to deliver.t In Cause Number 2013-2242-Cl. Mr.
Sellers was indicted as follows:
"Stephen Kenneth Lane Sellers, hereinafter called Defendant, on or about
the 25th day of September, A.D., 2013 in said county and state did then and
there knowingly possess, with intent to deliver, a controlled substance,
namely, methamphetamine, in an amount of one gram or more but less than
four grams."2
The State also submitted a special plea the jury alleging that "fAppellant]
used or exhibited a deadly weapon, to wit, a knife, during the commission of said
offense or during immediate flight therefrom.',3
'
1
(I C.R. at 42).
1 2005 WL 3435313, at*4 (Tex. App.-Houston [4th Dist.] Dec. 15, 2005,
pet. ref d) (mem. op., not designated for publication); Luna v. State,No. 01-98-01079-CR, 2000
wL730661), at *3 (Tex. App.-Houston [lst Dist.] June 8,2000, no pet.) (mem. op., not
designated for publication) (recognizingdistance between the assailant and the victim is a critical
evidentiary factor in whether the knife is a deadly weapon); but see Alexander v. S/a/e, No.
l0-r0-00279-cR, 2012Tex. App. LEXIS 3125, at *4 (Tex. App.-waco Apr. lg,2012,pet.
refd) (mem. op., not designated for publication) and see Petrie v. State,No. 10-13-00004-CR,
2014Tex. App. LEXIS 2829, at *6 (Tex. App.-waco Mar. 13,20r4,pet. refd).
to
Tsx. R. App. P.66.3(0.
't 13 R.R. at 15, r8).
Sellers v. State--.Appellant's Petition for Discretionary Review
Page 9
her headlights to more inconspicuously hunt for the perpetrator.t6 While driving
with her headlights blacked out, the officer observed "[Appellant] walking in the
middle of the street," a "detainable offense."tt App"llant "went behind another
vehicle."r8 The officer then activated her overhead lights at which point Appellant
extricated himself from behind the vehicle and "came out toward the patrol car.,,te
The officer asked Appellant what he was doing and Appellant responded that he
was walking to a friend's house.20 Appellant motioned with a cigarette in his left
hand2t while holding a Gerber multi-tool and a cell phone at his right side in his
right hand.zz At this point, Appellant and the officer were standing several feet
apart.z3 Appellant made no threatening gestures or statements during his
encounter with the officer.2a
The officer told Appellant that sheoosaw the knife" in his hand and "asked
him to set it down on the ground and then step away from it. Anything that can
hurt me, any sharp objects, anything like that, is a concern for me. I don't want to
t6
13 R.R. at 16).
t7
13 R.R. at t7).
t8
13 R.R. at r7).
'n 13 R.R. 17-1s).
'o Stut" Exhibit 1: in-car video.
"2' Id.
Id.
23
Id.
2o
Id.
Sellers v. StatFAppellanfs Petilion for Discrolionary Revisw
Page 10
be stabbed." Appellant immediately complied and set the knife down on the
street.26 The Gerber knife was later released to Appellant's girlfriend and did not
make it into evidence.tt Altho,rgh there was no testimony in the reporter,s record
regarding the distance between Appellant and the officer while Appellant had the
knife in his hand, the video demonstrates that Appellant was several feet away
from the officer. The chart below summarizes the video that captured the
interaction between Appellant and the officer:
Time Action
0:37 The officer blacks out lights of cop car.
0:46 The officer turns left onto a dark street.
0:51 Appellant walks across the dark street.
1:00 The officer activates her vehicle's headlights.
1:05 Appellant walks out onto the street from behind a vehicle.
1:09 Officer: "What are you doing here?
-
The officer stands several feet away from Appellant.
l:14 Appellant: "walking to my friend's house where li*r..
-y gitl
-
Appellant motions with a cigarette in his left hand.
-
The Gerber multi-tool is at Appellant's right side in his
right hand. The right side of Appellant's body is facing
away from the officer.
1:15 Officer: "Why don't you use the sidewalk?,,
-
officer walks toward Appellant. officer does not appear to
be in fear of Appellant.
1: l8 Appellant: "I stay in the streets 'cause I don't like walking down
that way - have someone walk out on me."
l:21 ? No gun or -"
"
2u
13 R.R. at l9).
State's Exhibit 1: in-car video.
" 13 R.R. at 49).
Sellers v. State-Appellant's Petition for Discrelionary Review
Page 1 1
l:22 Appellant: "Yeah, that's why I was walking with it like that.
-
Appellant takes the Gerber multi-tool out of his right hand
with his left hand. The knife is bladed out. Appellant makes
no threatening motions.
Appellant holds the knife up for the officer to see.
_ _;
l:24 Ofn..i
I:26 Appellant: "Sure."
- Appellant immediately complies and sets the knife down-
I:28 Officer: "All right, thank you. I appreciate it.;
1,:29 - 2:54 The officer and Appellant converse calmly. rn. om..iao., not
appear to be frightened of Appellant.
2:55 The officer walks toward Appellant. The officer i@
feet away from Appellant.
2:56 -3:37 The officer continues questionins Aooellant *itt-rrf annaret-tt fcqr
3:28 Officer: o'So let me ask you when you saw my car 'cause I know
--
I was blacked out."
3:31 epp.ttu
3:32 Officer: "(lh huh."
3:33 Appell
- Appellant motions to the area behind the vehicle
3:35 officer: "Thatos why you went over there. oka1r, tause I was like
wondering there."
3:41 Appellant: "No, okay, what would you think _ you see a car
coming up -"
3:43 Officer: "Oh no, I agree.
3:44 Appellant: "Shoooot."
3:45 officer: 'oEspecially blacked out. That would,ve scarid the heck
out of me. Do me a favor - take a step back from here, okay. I'm
just going to bring this over here.,,
- Per the officer's instruction, Appellant takes a step
backward.
- The officer steps forward toward Appellant to retrieve the
_ __ knife and picks up the knife off the street.
3:5 1 Officer: "All rightr you can come back over here."
3:56 Officer: "Just come back over here for me.,'
Sellers v. Stats-Appellant's petition for Discretionarv Review
- Per the officer's instruction, Appellant takes a few steps
toward the officer.
- Appellant talks on his cell phone and continues smoking his
cigarette.
- Appellant is still many feet away from the officer.
The officer then ran Appellant's name through a State of Texas and national
check and determined that Appellant had a child support warrant out for his
arrest.28 At that point, the officer arrested Appellant.te After arresting Appellant,
the officer ventured behind the vehicle from whence Appellant had exited
initially30 and discovered a black pouch3l containing "scales, methamphetamine, a
little tray to weigh the methamphetamine and baggies.,,32
III. Case Law
This Honorable Court has found that the physical proximity of the victim to
the knife represents the dominant factor in determining whether a knife is a deadly
weapon." Where the evidence does not show that the victim is within',striking
distance by means of the use of the knife," the evidence does not support that the
'8 13 R.R. x22).
'e 13 R.R. at22,24).
to
13 R.R. at24).
3t
Id.
:: Id (3 R.R. at72).
" Alvarez v. State,566 S.W.2d 612, 613 (Tex. Crim. App. l97S); Fregia v. State,l g5 S.W. I l,
12 (Tex. crim. App. 1916); Davidsonv. state,602 s.w.2d,272,274 (Tex. crim. App. l9g0).
Sellers v. State-Appeltant's Petition for Discretionary Review
Page 13
knife is deadly by use.3a In Mr. Sellers' case, the Waco Court of Appeals
specifically noted that Appellant was "about 5 feet" from the officer when he had
the knife in his hand,3s impliedly finding that the officer was outside of
the zone
of danger from the knife. Although this Court and sister courts of appeal have
focused on the importance of the distance between a defendant in possession of a
knife and the complaining witness, the Tenth Court of Appeals ignored the
distance factor entirely and held that the evidence in Mr. Sellers' case supported a
finding that the Gerber knife was a deadly weapon.ru
A. Texas Courts Hold that a Kntfe is a Deadly l(eapon by (Jse only
if the victim is within the zone of Danger of the Knife.
i. Case Law from this Honorable Court
rn Fregia, this court noted that to constitute a deadly weapon, the
complaining witness must be "within such distance" that adefendant could inflict
"an injury upon the alleged assaulted party by the use of the means employed.,,37
In that case, this Court found that the distance between the parties or whether the
alleged victim "was in danger of being cut by the knife" was'too uncertain and
indefinite...to show that he was within striking distance by means of the use of the
3a
Fregia v. State,185 S.W. ll,12 (Tex. Crim. App. 1916).
" sellers v. state, No. 10-14-00226-cR, at *9-10 (Tex. App.-waco May 7,2015 no pet. h.)
(p.*. op., not designated for publication).
'" Id. at *8-9.
Sellers v. State-Appellant's Petition for Discretionarv Review
Page 14
knife."38
Decades later, in Alvarez, this Court considered whether a defendant's
holding a linoleum knife and advancing to within three or four feet of an officer
provided sufficient evidence of a deadly weapon.'n In that case, the officer pointed
his service revolver at the defendant and ordered the defendant to drop his knife.ao
The defendant took a swing at the officer with the knife and the officer shot the
defendant in the l.g.ot The defendant continued advancing toward the officer
wielding the knife until the officer threatened to kill the defendant.a2
Evaluating the evidence for legal sufficiency, the Court of Criminal Appeals
in Alvarez noted the following: (1) the officer did not suffer any wounds, (2) the
record reflected no testimony as to the size of the knife's blade, although the
arresting officer "testified it looked sharp," and (3) the officer testified ,,that he
was in fear of serious bodily itjnty or death while the appellant brandished the
knife."43 Taking these factors into account, this Court found that the evidence
37
Fregia,185 S.W. at12.
t8
Id. lthe Court noted that had the defendant possessed a oopistol"
instead of a knife and the
defendant was shooting at the victim within a short range, the Court'owould have had a different
proposition").
',e Alrare, v. Stote,566 S.w.2d 612,613414 (Tex. Crim. App. 197g).
oo
Id.
o' Id.
o2
Id.
ot
Id. at 614.
Sellers v. Stat+Appellant's Petition for Discretionary Review
Page 15
regarding "the manner of its use or intended use insufficient to show that the
linoleum knife was capable of causing death or serious bodily injury."aa
ii. Case Luw from Lower Appellate Courts
Texas courts of appeal have held that Alvarez stands for the proposition that
the "critical evidentiary factor in that case was the distance between the actor and
the complainant at the time of the assault."a5
ln Herbert,the Eighth Court of Appeals considered the sufficiency of the
evidence to support a deadly weapon finding where the defendant held a kitchen
knife to his wife's throat and threatened to kill her.a6 The court in Herbert
distinguished Alvarez as follows:
'oThe critical evidentiary factor lin Alvarez] was the distance between the
actor and the complaint at the time of the assault. Brandishing a three-inch
blade at a distance of six feet or a linoleum knife at a distance of four feet
44
Id.
as
Herbert v. State,631 S.w.2d 585, 586 (Tex. App.-El paso 1982, no pet.); cJ; Ilade v. State,
951 S.W.2d 886, 893 (Tex. App.-Waco 1997, pet ref d) (the Court found that asix-inch blade
was "capable of causing death or serious bodily injury" where the defendant had the victim
pinned by one arm and pulled out the blade with the other arm); Rogers v. State,877 S.W.2d
498, 500 (Tex. App.-Fort Worth 1994,pet. ref d) (although the knife in that case was closed,
the court held it was solely the distance (two feet) between the alleged attacker and the victim
that rendered the closed knife a "deadly weapon"); see also Lucero v. ,S/ate, 915 S.W.2 d 612,615
(Tex. App.-El Paso t996,pet. refd); Grover v. state,No. 14-04-00672-cR, 2005 wL
3435313, at *4 (Tex. App.-Houston [14th Dist.] Dec. 15, 2005,pet. refd) (mem. op., not
designated for publication); Luna v. State,No. 01-98-01079-CR, 2000 wL 730661), at *3 (Tex.
App.-Houston [lst Dist.] June 8, 2000, no pet.) (mem. op., not designated for publication)
(recognizing distance between the assailant and the victim is a critical evidentiary factor in
whether the knife is a deadly weapon).
a6
Herbert 631 S.W.2d at 585.
Sellers v. State--Appellant's Petition for Discretionary Review
did not constitute a manner of use posing a sufficient threat of serious
bodily injury or death to justifu the verdict. From both a practical and legal
standpoint, the effective range of the weapon is of primary consideration
in
categorizing an instrument as deadly. This, more than any other
factor, has
led to the different treatment of firearms and knives in making this
determination. The distance factor, alone, distinguishes.. . Alvarez from
the
present case, to the extent of producing a different result.,'47
iii' McCain did Not Eliminate the Zone of Danger Requirement
for a Knife to Constitute a Deodly l(eapon iy (Ise.
The Waco Court of Appeals relied on this Court's holding in McCain for
the proposition that a knife may constitute a deadly weapon if it is capable of
causing deadly force, even if the actor has no intention of actually using the deadly
force.as
ln McCain, the Texas Court of Criminal Appeals found that the mere
carrying of a "butcher knife during such a violent attack as occurred in the present
case was legally sufficient for a fact finder to conclude that the 'intended use, for
the knife was that it be capable of causing death or serious bodily injury."ae
However, a review of the facts of that case demonstrates that the defendant
brought himself well within the defined zone of danger for a knife. In McCain,the
indictment alleged that the defendant did "use and exhibit a deadly weapon, to wit:
47
Id.
a8
stllrrsstate,No. l0-14- 00226-cR at *g-9 (Tex. App.-waco May 7,2015 no pet. h.)
v.
(mem. op., not designated for publication) (citing McCainv. State,22 S.w.3d 497,
503 (Tex.
Crim. App. 2000) (en banc)).
Sellers v. State-Appellant's Petition for Discretionarv Review
Page 17
a knife, which in the manner of its use and intended use was capable of causing
death or serious bodily injury."so At trial, the evidence showed that the defendant
kicked in the door of the victim's kitchen and "hit her numerous times with his
fist."5r During the brutal attack,the victim saw a knife sticking out of the
defendant's back pocket.52 When the police later arrested the defendant, they
discovered a butcher knife with a nine-inch blade on the defendant's person.t' It
can be inferred that since the defendant got close enough to the victim to strike the
victim with his fist, he was within the zone of danger for a knife established in
Alvarez.so As such, McCain created no exception for merely possessing a weapon
when not within the zone of danger.
B. The officer was Not within the Danger zone for a Knife when
Appellant Had the Knife in His Hand.
The video captured by the officer establishes that a zone of several feet was
maintained between the officer and Appellant during the time Appellant had the
knife in his hand down by his side.55 In fact, the Waco Court of Appeals
specifically found that Appellant was "about five feet" from the officer when he
on
Mccain, 22 s.w.3d at 503.
so
Id. at499.
st
Id.
52
Id.
53
Id.
to
Src Id. at613-14.
Sellors v. State-4ppellant's Petition for Discretionary Review
Page 18
had the Gerber knife in his hand.56 Appellant was simply too far away from the
officer when he could have realistically deployed the knife in a deadly manner.
Because the evidence is insufficient to show that the officer was within the
zone of
danger of a knife, the evidence does not support that the knife is deadly by use.57
Therefore, this Court should grantMr. Sellers' Petition for Discretionary Review.
c. The waco court Failed to Address the zone of Danger.
This Court holds that a "rigorous and proper application of this State,s legal
sufficiency standard" is an "exacting standard."58 A memorandum should be ,,no
longer than necessary to advise the parties of the court's decision and the basic
reasons for it."se However, the Waco Court's memorandum on Mr. Sellers, case
ooexceeds
what is permissible by failing to give any reason whatsoever for its
conclusion that the evidence established6O that the officer was within the zone of
danger of the Gerber knife in Mr. Sellers, possession.
55
State's Exh. 1: in-car video.
s6
sellers v. State,No. l0-14-00226-CR at *10.
s7^
Alvarez,566 s.w.2d at 613-14; Fregia v. state,lg5 s.w. rr,l2(Tex. crim. App. 1916).
s8
Broolrs v. State,323 S.w.3d 893, 90; (Tex. Crim. App. 2010) (referencin g Jaclcson v.
Virginia,443 U.S. 307 (1979)).
5e
Tex. R. App. P.47.4.
u0
citirens Nat'l Bank in waxahachie v. scott,r95 s.w.3d 94, g6(Tex. 2006).
Sellers v. StatFAppellant's Petition for Distretionarv Review
Page 19
The Waco Court's departure from the "accepted and usual course ofjudicial
proceedings" calls for this Court to grant Mr. Sellers' Petition.6t Texas Rule of
Appellate Procedure 66.3(f) 'omuy cover holdings by the courts of appeals with
little or no significance beyond the particular cases in which they are made but that
are so dramatically or blatantly incorrect that basic notions of fairness dictate that
the wronged party may not be left without recourse."62 Therefore, ata minimum,
this Court should grant IW. Sellers' Petition and order the Waco Court of Appeals
to provide its basis for determining how the evidence supports a deadly weapon
finding in light of controlling case law regarding the distance between a defendant
with a knife and his purported victim.
IV Conclusion
Finding the evidence legally sufficient to support a deadly weapon in Mr.
Sellers' case required the Waco Court of Appeals to blatantly disregard Texas case
law. Therefore, this Honorable Court should grantreview. At the very least, this
Court should demand an explanation from the Waco Court of Appeals as to how
the evidence in his case supports a deadly weapon finding when the officer was
outside the danger zone of Mr. Sellers and his knife.
6t
Tnx. R. App. 66.3(f).
u' 438 George E. Dix et al., Texas Practice Series: Criminal Practice and Procedure
$ 57:32
Sellers v. State-Appellant's Petition for Discretionarv Review
Page 20
PRAYER FOR RELIEF
Mr. Sellers prays that this Court grant his Petition for Discretionary Review.
Respectfully submitted,
Law Orrrcn oB Srvrnn & TnrnNs
3706 Bellmead Drive
Waco, Texas 76705
(2s4) 412-2300
(888) 3 17 -7 610-Facsimile
E-mail : attorneychelsea@gmail. com
State Bar No. 24076733
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
On June 23,2015, a copy of this Motion for Rehearing was delivered to the
Mclennan County District Attorney by facsimile.
Chelsea Tijerina
(3d ed. 2013).
Sellers v. State--.Appellant's Petition for Discretionarv Review
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z/--)-
\ .."---- {--\
Chelsea Tijerina
Attorney for Appellant
Sellers v. State--Appellant's Petition for Discretionary Review
Page 22
IN THE
TENTH COURT OF APPEALS
No. L0-L4-00226-CR
STEPHEN KENNETH LANE SELLERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the L9th Distuict Court
Mclennan County, Texas
Trial Court No. 2013-2242-CL
MEMORANDUM OPINION
Stephen Kenneth Lane Sellers was convicted of possession with the intent to
deliver a controlled substance, that being methamphetamine, and sentenced to 40 years
in prison. See TBx. Hr,qrrH & Serurv Conu Aur.r. S 481.1,12 (a) (c) (West 2010). Because
the evidence was sufficient to support the conviction, the trial court's judgment is
affirmed.
Be,crcnouNo
Waco Police Department Officer Cassie Price was patrotling a specific area of
town in the early morning hours looking for a suspect in a recent burglary. When she
arrived at the area of the burgla{f, she furned off her headlights and noticed a man
walking down the middle of the street. She turned on her headlights and the man
ducked behind a parked car. She activated her overhead tights and the man emerged
from behind the car, holding a knife and cell phone in one hand and a cigarette in the
other. The man, who was identified as Sellers, was eventually arrested on an
outstanding warrant. When the location where he had been hiding was searched after
his arrest, a pouch containing a sellable amount of methamphetamine and delivery
paraphernalia was found. Sellers was later charged with possession with the intent to
deliver methamphetamine.
Surrrclnrrtcy oF THE EvTDENCE
In two issues on appeal, Sellers asserts that the evidence was insufficient to show
that he possessed or intended to deliver a controlled substance or that he used or
exhibited a deadly weapon.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiencv issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson a. Virginia, 443TJ.5.307, 3'J.8-19 (1979); Hooper o. State,214 S.W.gd g,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
Sellers v. State page2
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultirnate facts." lackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper,2l4 S.W.3d at 13.
Lucio o. State,351 S.W.3d878,894 (Tex. Crim. App. 201,1).
The Court of Criminal Appeals has also explained that our review of "all of
the
evidence" includes evidence that was properly and improperly admitted. Conner o.
State,67 S.W.3d 1'92, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson a. Virginia, 443 U.S. 302
326, 99 S. Ct. 278'!', 61' L. Ed. 2d 560 (1979). Further, direct and circumstantial
evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper a. State,214 S.W.3d9,'1.3 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers a. State,805 S.W.2d 459,461 (Tex. Crim. App. j,ggl).
Possession
sellers first argues that the evidence was insufficient to support the possession
element of the offense.
To prove unlawful possession of a controlled substance, the State must prove
Sellers v. State
Page 3
that (1) the accused exercised controf management, or care over the substance;
and (2)
the accused knew the matter possessed was contraband. Eoans o. State,202
S.W.3d Lsg,
L6L (Tex. Crim. App. 2006); see also Tsx. HrA.rrn & serurv Coor ANN. S 4g1.002(3s)
(West 2010) ("'Possession' means actual care, custody, control, or management.,,).
Possession is not required to be exclusive. Roberts a. state, No. 10-14-0004g-cR 2015
Tex. App. LEXIS 78, *g-4 (Tex. App.-waco Jan. & 2a'r.s, no pet. h.) (not designated for
publication).
When the defendant is not in exclusive possession of the place where the
controlled substance is found, then additionaf independent facts and circumstances
must link the defendant to the substance in such a way that it can reasonably be
concluded that the defendant possessed the substance and had knowledge of it. See
Poindexter a. State,153 S.W.3 d 402,406 (Tex. Crim. App. 2005). Whether
this evidence is
direct or circumstantial, "it must establislr, to the requisite level of confidence, that the
accused's connection with the drug was more than just fortuitous." Iil. 405-406 (quoting
Brown o. State, 91'1' 5.W.2d744,747 (Tex. Crim. App. 1995)). Evidence which links the
defendant to the controlled substance suffices for proof that he possessed it knowingly.
Broznn v. State,911 S.W.2d744,747 (Tex. Crim. App. 1,gg1). It is not the number of links
that is dispositive, but rather the logical force of all of the evidence, direct and
circumstantial. Eaans, 202 S.W.3d at 1,62; Santiesteban-Pileta a. State, 421. S.W3d g, -!.2
(Tex. App.-Waco 2013, pet. ref'd).
Sellers v. State
Page 4
Facts
The evidence showed that Sellers was walking down a residential street
at four
in the morning. As a police car without its lights on approached, he concealed
himself
behind a parked vehicle. Once the officer, Cassie Price, activated her overhead
lights,
Sellers emerged from behind the vehicle holding a multi-tool utensil with the knife
blade out. Price asked Sellers to drop the knife and step away from it. He complied.
While speaking with Price during the encounter, Sellers used his cell phone and made
at least one call, informing Price that he was talking to a girl.
After backup arrived, Sellers was arrested on an outstanding warrant. price then
decided to search the area behind the vehicle where Sellers had been hiding. There,
she
found a black pouch containing 2.46 grams of methamphetamine, a shattered glass
pipg a straw, a set of scales, a small tray, several baggies, and an Eunount of cash. A
short time later, a woman, Sherri Vannatt4 arrived on the scene. Vannatta advised
Price that she had come at Sellers's request to get Sellers's belongings. She told price
that the black pouch was Sellers's, and identified the pouch and confirmed at trial that it
was Sellers's. Further, Sellers's cell phone, which was searched later pursuant to a
warrant, showed an unsent text message to Vannatta which referenced the black pouch.
Application
Although sellers was not at the specific location at the time the
methamphetamine was located, we find that the evidence sufficientlv linked Sellers to
J
Sellers v. State
Page 5
the drugs to support the possession element of the offense. Sellers would like us to
review and give great scrutiny to links not present in this case. However,
the absence of
any of the various factors discussed in other cases does not constitute
evidence of
innocence to be weighed against the factors present in this case. Santiesteban-pileta o.
Stnte, 421 S.W d 9,1..5 (Tex. App.
.3
- Waco 20-1.9, pet. ref, d).
lntent to Delioer
Sellers also contends the evidence is insufficient to prove that he had
the intent to
deliver methamphetamine.
Intent to deliver may be established by expert testimony, such as testimony from
experienced law enforcemenf and by circumstantial evidence. Moreno o. -1.95
State,
S'W'3d 32'J', 325 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); Terrell a.
State, 20'1.'1.
Tex' App. LEXIS 5605 (Tex. App.-Waco July 20,20'1,'1,, pet. ref'd) (not designated for
publication).
Additional Facts
Some of the facts that support the element of possession also support
the element
of intent to deliver. Those facts do not bear repeating here. Additional facts
supporting
the intent to deliver element are as follows.
Sgt. fohn Allovio testified at trial that based on his experience as a drug
enforcement officer, the amount of methamphetamine recovered from the
black pouch
could be sold in 25 units with a total cash value of $250. Reviewing the contents
of
Sellers v. State
Page 6
Sellers's cell phone, Allovio identified messages, such as "r u still holding
anything or r
u out " and "I still got some," that were consistent with drug-dealing and were
conveyed in cornmon drug culture language. Based on the amount of meth-
amphetamine recovered, the scales, the individual dosage baggies,
and the text
messages, Allovio formed an opinion that the evidence was indicative
of someone who
would be selling narcotics. Further, Allovio testified that based on the totality of
the
circumstances, he had no doubt that the black pouch and its contents
belonged to
Sellers.
Application
Although the black pouch was not recovered from Sellers, it was identified
as
being his pouch. Further, what was in the pouch, along with text messages
retrieved
from Sellers's cell phone sufficientty indicated that Sellers intended to deliver the
methamphetamine.
Conclusion
Accordingly, after considering all of the evidence in the light most favorable to
the verdicf we determine that, based on that evidence and reasonable inferences
therefrom, a rational jury could have found beyond a reasonable doubt that Sellers
knowingly possessed the methamphetamine with the intent to deliver it.
Sellers's first issue is overruled.
Sellers v. State
PageT
Deadly Weapon
Sellers further contends the evidence was insufficient to support the deadly
weapon finding made by the jury. Specifically, Sellers contends that the evidence was
insufficient to show that the knife was, in f.act, adeadly weapon.
What constitutes a "deadly weapon" is determined by Section 1.07 of the Texas
Penal Code. Tnx. PENA.L CODE ANN. S 1.07 (West 2011); Robertson a.
State,163 S.W.3d
730, 732 (Tex. Crim. App. 2005). A deadly weapon includes anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury,
or anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury. Id. $1'.07(a)(17XA), (B) (emphasis added). "serious bodily
injury,,
means bodily injury that creates a substantial risk of death or that causes
deatlu serious
Permanent disfigurement, or protracted loss or impairment of the function of any
bodily member or organ. Id. g1..07(aX46).
Whether any particular knife is a deadly weapon by design or usage or not a
deadly weaPon at all depends on the evidence. Thomas a. State, g2l, 5.W.2d,6'1.6,
G20
(Tex. Crim. APp. 1991). The plain language of the statute does not require
the actor to
actually intend death or serious bodily injury; an object is a deadly weapon if the actor
intends a use of the object in which it would be capable of causing death or serious
bodily i.jrry. McCain a. state, 22 s.w.3d 497, s}B (Tex. crim. App. 2000). The
placement of the word "capable" in the provision enables the statute to cover conduct
Sellers v. State
Page 8
that threatens deadly force, even if the actor has no intention of actually using
deadly
force. Id.
Expert or lay testimony may be sufficient to support a deadly-weapon
finding,
and police officers can be expert witnesses with respect to whether
a deadly weapon
was used. Tucker a. state, 274s.w.3d 688, 692 (Tex. Crim. App. 200g).
Furthermore, the
blade need not actually have caused any injuries for it to be considered a deadlv
weapon. Id. at697.
The knife at issue was not introduced into evidence. It was, however,
described
as part of a multi-tool instrument that contained other utensils, such as a screwdriver
and pliers, as well as the knife. Further, when the knife blade was out, it
was locked in
place. To put the knife blade away would require the blade to be unlocked.
Officer Price first saw the knife when Sellers emerged from behind the car where
he had been hiding. When she saw what it was, she asked Sellers to put it down and
step away from it. Price was concerned about the knife because she did not want to
be
stabbed. Price was by herself and was concerned that Sellers, seeing a uniformed
officer, would still emerge from his hiding place carrying a blade. price agreed that,
in
the manner of its intended use, the knife could have caused serious bodily irjury.
On the video of the encounter between Sellers and Price, Sellers could be seen
coming out from behind a vehicle with something in his right hand as soon as price
stopped her patrol unit. He continued to approach her until they were about 5 feet
Sellers v. State
Page 9
apart. When Price asked to see what was in Seller's hand, he showed her the blade
which appeared to be about 4 inches long. After Seller's put the knife dowry
he backed
away a few more feet from price.
After considering att of the evidence in the light most favorable to the verdict,
we
determine tha! based on that evidence and reasonable inferences therefrom,
a rational
jury could have found beyond a reasonable doubt that the knife, at the very least, was a
deadly weapon by the manner of its use or intended use.
Sellers's second issue is overruled.
CoNcrusloN
Having overruled each of Sellers's issues presented on appeal, we affirm the trial
court's judgment.
TOM GRAY
Chief |ustice
Before Chief ]ustice Gray,
]ustice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May7,2015
Do not publish
lcRPMl
Sellers v. State Page 10