Brandon Bernard Battle v. State ( 2015 )

ACCEPTED
06-15-00133-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/18/2015 3:17:35 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00133-CR
FILED IN
IN THE COURT OF APPEALS FOR 6th COURT OF APPEALS
TEXARKANA, TEXAS
THE SIXTH COURT OF APPEALS DISTRICT
11/19/2015 9:22:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
BRANDON BERNARD BATTLE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S BRIEF
On Appeal from the 220th District Court
of Bosque County, Texas,
Trial Court Cause No. CR 14972
E. Alan Bennett
State Bar #02140700
Attorney for Appellant
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Telecopier: (254) 772-9297
Email: abennett@slmpc.com
Identity of Parties and Counsel
Appellant, pursuant to Rule of Appellate Procedure 38.1(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.
THE DEFENSE:
Brandon Bernard Battle Appellant
Terence A. “Tiger” Russell Trial Counsel
P.O. Box 306
Hillsboro, Texas 76645
E. Alan Bennett Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710
THE PROSECUTION:
Adam Sibley Trial & Appellate Counsel
Shaun Carpenter
Assistant District Attorneys
B.J. Shepherd
District Attorney
220th Judicial District
P.O. Box 368
Meridian, Texas 76665
Appellant’s Brief Page 2
Table of Contents
Identity of Parties and Counsel ......................................................................... 2
Table of Contents ................................................................................................ 3
Index of Authorities ............................................................................................ 5
Statement of the Case ......................................................................................... 8
Statement Regarding Oral Argument ............................................................... 9
Issues Presented .................................................................................................. 9
Statement of Facts ..............................................................................................10
Summary of the Argument ...............................................................................21
Argument ............................................................................................................22
First Issue: The evidence is legally insufficient to support the trial court’s
finding that Battle knowingly possessed the narcotics found in the
apartment. .....................................................................................................22
A. The Court Reviews the Evidence in a Light Favorable to the Verdict.
.......................................................................................................................22
B. The Evidence Must Link the Accused to the Narcotics. .....................23
C. The Evidence Does Not Link Battle to the Narcotics. .........................25
D. The Court Must Reverse and Render a Judgment of Acquittal. ........29
Second Issue: The evidence is factually insufficient to support the trial
court’s finding that Battle knowingly possessed the narcotics found in the
apartment. ..................................................................................................30
A. The Court of Criminal Appeals is Reconsidering Brooks....................30
B. The Court Reviews the Evidence in a Neutral Light. ..........................32
C. The Evidence is Factually Insufficient to Link Battle to the Narcotics.
.......................................................................................................................33
Appellant’s Brief Page 3
D. The Court Must Reverse the Judgment and Remand for a New Trial.
.......................................................................................................................36
Third Issue: The judgment incorrectly recites that Battle was convicted of
a first degree felony. .......................................................................................37
A. The Trial Court Must Enter a Proper Judgment..................................37
B. No Objection is Required. ......................................................................37
C. The Judgment is Not “Proper.” .............................................................38
D. This Court Must Correct the Judgment. ..............................................39
Prayer ..................................................................................................................40
Certificate of Compliance ..................................................................................41
Certificate of Service ..........................................................................................41
Appellant’s Brief Page 4
Index of Authorities
Texas Cases
Anderson v. State, 416 S.W.3d 884 (Tex. Crim. App. 2013)..............................23
Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ..... 38, 39
Assiter v. State, 58 S.W.3d 743 (Tex. App.—Amarillo 2000, no pet.) . 32, 35, 36
Bozeman v. State, 340 S.W.3d 515 (Tex. App.—Texarkana), rev’d on other
grounds, 353 S.W.3d 886 (Tex. Crim. App. 2011) .............................................23
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................... 30, 31, 32
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) .....................................29
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ............................ 32, 36
Cobb v. State, 95 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
........................................................................................................................38, 39
Denny v. State, No. 13-00-00510-CR, 2001 WL 34615524 (Tex. App.—Corpus
Christi 2001, pet. ref’d) ................................................................................35, 36
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) ................. 24, 25, 26, 34
Garner v. State, 214 S.W.3d 705 (Tex. App.–Waco 2007, no pet.) ............. 37, 39
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .....................................23
Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) .......................... 32, 33, 35
Johnson v. State, 419 S.W.3d 665 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d) ....................................................................................................................31
Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) .....................................33
Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) ....................................23
Appellant’s Brief Page 5
Mart. v. State, 405 S.W.3d 944 (Tex. App.—Texarkana 2013, no pet.).........39
Mitchell v. State, 942 S.W.2d 170 (Tex. App.—Amarillo 1997, pet. ref’d) ......37
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................ 24, 26, 34
Stew. v. State, No. 10-14-00183-CR, 2015 WL 3823273 (Tex. App.—Waco
June 18, 2015, pet. filed) (mem. op., not designated for publication) ...........25
Triplett v. State, 292 S.W.3d 205 (Tex. App.—Amarillo 2009, pet. ref’d)
..................................................................................................................... passim
Walker v. State, No. PD-1429-14 (Tex. Crim. App. Oct. 14, 2015) ...................31
Ward v. State, 48 S.W.3d 383 (Tex. App.—Waco 2001, pet. ref’d) ...... 32, 33, 36
White v. State, 890 S.W.2d 131 (Tex. App.—Texarkana 1994, pet. ref’d) . 35, 36
Appellant’s Brief Page 6
Texas Constitution
TEX. CONST. art. V, § 6 ........................................................................................31
Texas Statutes
TEX. CODE CRIM. PROC. art. 37.12 .......................................................................37
TEX. CODE CRIM. PROC. art. 42.01, § 1(13) .........................................................37
TEX. CODE CRIM. PROC. art. 44.25.......................................................................31
TEX. HEALTH & SAFETY CODE § 481.115 .........................................................8, 38
Rules
TEX. R. APP. P. 41.3 ............................................................................................... 8
TEX. R. APP. P. 43.2 ................................................................................. 29, 36, 39
Appellant’s Brief Page 7
Statement of the Case
In a bench trial, the trial court, the Honorable Phil Robertson, judge of
the 220th District Court of Bosque County, found Brandon Bernard Battle
guilty of possession of one gram or more but less than four grams of
methamphetamine. (CR 32-33), (RR 1 180) See TEX. HEALTH & SAFETY CODE §
481.115(c). Battle pleaded “true” to enhancement allegations raising his
punishment range to that for an habitual offender. (RR 181-82) The court
sentenced Battle to twenty-five years’ imprisonment. (CR 32-33), (RR 183)
Battle timely filed a notice of appeal to the Waco Court of Appeals. (CR 41)
Under a docket equalization order, the appeal was transferred to this Court. 2
1
Because the second volume of the reporter’s record contains only exhibits, counsel
will refer in this brief to the first volume of the reporter’s record as “RR” and will cite
individual exhibits as necessary.
2
In accordance with Rule 41.3, this appeal should be decided in accordance with
the precedent of the Waco Court of Appeals to the extent applicable. TEX. R. APP. P. 41.3.
Accordingly, counsel provides citations to relevant decisions of the Waco Court (and of
this Court) when available.
Appellant’s Brief Page 8
Statement Regarding Oral Argument
Oral argument will not aid the Court’s decisional process in this
appeal.
Issues Presented
First Issue: The evidence is legally insufficient to support the trial court’s
finding that Battle knowingly possessed the narcotics found
in the apartment.
Second Issue: The evidence is factually insufficient to support the trial
court’s finding that Battle knowingly possessed the narcotics
found in the apartment.
Third Issue: The judgment incorrectly recites that Battle was convicted of
a first degree felony.
Appellant’s Brief Page 9
Statement of Facts
The Charges
The indictment alleges that on or about February 5, 2014, Battle did:
intentionally or knowingly possess a controlled substance, namely,
Methamphetamine, in an amount of one gram or more but less than
four grams.
(CR 5)
The Trial Court Proceedings
Battle and his trial counsel signed a written waiver of jury trial. (CR
29) The court admonished Battle regarding his right to a jury trial and
determined that Battle knowingly and intelligently waived this right. (RR 8-
11)
Clifton Police Chief Trace Hendricks has worked with confidential
informants before on “numerous occasions.” (RR 28) He explained that he
met Misti Millican because of her involvement in an accident in which she
had been a passenger but fled the scene. (RR 29) She came to the office to
discuss the case. She explained that she had just bought narcotics before the
accident and fled because she did not want to be caught with it in her
possession. (RR 30)
Appellant’s Brief Page 10
Millican’s name had come up in “numerous interviews with narcotics
offenders” so Chief Hendricks asked her if she would work with the
department as a confidential informant in exchange for some leniency on the
evading case. She agreed to contact people she knew and try to arrange
narcotics deals with them. (RR 31- 32)
One of those individuals was Battle, and he was arrested that
afternoon. (RR 36-37) However, Chief Hendricks did not participate in the
arrest or even write a report. (RR 39)
Misti Millican Black testified that, when she met with Chief Hendricks,
she admitted that the driver and she had been transporting
methamphetamine to a location in Clifton when they fled after the accident.
(RR 47 When she agreed to work with the department, she made phone calls
trying to arrange drug deals. She made these calls from her apartment and
several officers were present when she made them. (RR 49)
Millican testified that she has known Battle as a narcotics dealer for
about fifteen years. (RR 50) She had purchased from him before. When she
called Battle, she wanted to ask him to bring her a sixteenth of an ounce of
Appellant’s Brief Page 11
methamphetamine which is also known as a “teener.”3 But Battle did not
answer, so she called another dealer. Battle returned her call later. (RR 52)
The second person she called came to her apartment first. They arrested him
and hid him in the bathroom because Battle was on the way. (RR 54)
Millican never saw any narcotics in Battle’s hand, but she claims that
she saw him reach behind the television. 4 She insisted that she had no reason
to hide any methamphetamine behind the television, nothwithstanding that
she later testified she was using methamphetamine on a daily basis at that
time. (RR 55, 61) Battle, however, insisted to the officers that he did not have
any drugs, and if any drugs were found, they were Millican’s. (RR 56)
Relying on cell phone records, 5 Millican identified the telephone calls
and text messages she exchanged with Battle that afternoon. (RR 57-59) She
testified that in their text messages, “I told him I wanted to purchase
3 Millican explained that a “teener” is 1.7 grams and costs $170. (RR 53)
4
Notwithstanding Millican’s testimony, the video recording depicting the arrest
shows that the officers tackled Battle before he even got to the television. (SX 1) The
television is around the corner and to the right from the hallway depicted when the video
begins. Thus, Battle had no opportunity to reach behind the television.
5
When the State later offered the phone records in evidence, Battle objected on the
basis of hearsay, and the State withdrew the exhibit. (RR 102) However, Battle did not
object to Millican’s earlier testimony about the contents of the records.
Appellant’s Brief Page 12
methamphetamine and he had told me he was getting dressed.” (RR 60)
Millican was also arrested that day on a warrant for hot checks. (RR 61)
On cross-examination, Millican described how the officers looked
through her apartment when they first arrived. (RR 64-66) She
acknowledged that she had been previously convicted of burglary of a
building in Hill County. (RR 71) Millican admitted to the officers (and the
jury) that it was “a possibility” that the narcotics were hers. (RR 73-74)
However, after seeing how the drugs were packaged, Millican claimed that
they were not hers. She also admitted that she had sent a Facebook message
claiming that the drugs were hers. She explained, however, that she did so
because Battle had threatened to kill her and she feared for her life. (RR 74)
She claimed that he made this threat to her in her living room after he was
handcuffed that afternoon. 6 (RR 74-75)
Clifton Police Officer Darren Glenn7 also met with Millican when she
agreed to work with the department. (RR 79) When Millican talked on the
6
However, the video recording of the arrest and subsequent events does not contain
any indication that Battle threatened her in any way. (SX 1)
7
At the time of trial, Officer Glenn was a deputy with the Bosque County Sheriff’s
Department. (RR 77)
Appellant’s Brief Page 13
phone that afternoon, she used the speaker phone setting. (RR 84) Officer
Glenn recognized Battle’s voice on the phone. (RR 85) He recalled that Battle
agreed to bring Millican $170 worth of methamphetamine. (RR 87) He
acknowledged that he conducted only a “cursory search” of the apartment’s
kitchen and living room area. (RR 90)
Battle knocked on the back door, and Millican let him in. She walked
ahead of him as they went through the kitchen to the living room. They had
a brief conversation, but Officer Glenn could not hear what was being said.
When Battle looked down the hall, Officer Glenn thought he might see the
officer operating the video camera, so he announced his presence and
commenced to apprehend Battle. (RR 92) Officer Glenn tried to bear hug
Battle. Other officers also grabbed him. “We slid across kind of a little table
and a TV set there then lowered him to the floor.” They did not locate any
drugs on his person. He denied having brought anything with him. (RR 93)
A couple of minutes after Officer Glenn secured Battle, another officer
(Deputy Pullin) found a small bag of suspected methamphetmine “right
Appellant’s Brief Page 14
underneath us” in the area where they struggled with Battle. 8 He did not see
Battle throw anything on the ground. Deputy Pullin purportedly found a
second baggie containing suspected methamphetamine “in the same spot,
kind of close to the wall between the little table stand and the TV, just that
same area.” (RR 95-96) He insisted that these two baggies were not there
before Battle arrived. He testified that he was “confident” that this
contraband must have come from Battle. (RR 96)
Officer Glenn testified that he “was made aware” that Battle had
threatened Millican at the time. 9 However, he did not hear or see any threats
made. (RR 97) The officers were unable to obtain fingerprints from the
baggies that they seized. (RR 100)
On cross-examination, Officer Glenn testified that Battle’s hands were
in his pockets when he walked into the apartment. (RR 106) He is pretty sure
that he grabbed hold of one of Battle’s arms “maybe his left” when he first
8
The video recording does not support Officer Glenn’s testimony that this baggie
was “found” “right underneath us.” When Deputy Pullin directs the officer making the
video recording to the area where he purportedly found the baggie (at approximately
3:36 in the video), the deputy is indicating an area between the television and another
piece of furniture containing wicker baskets, several feet from where the officers took
Battle down. (SX 1)
9
Presumably, Millican shared this information with the deputy.
Appellant’s Brief Page 15
tried to apprehend him. He conceded, however, that one of the other officers
may have grabbed one of his arms and pulled it from his pocket. (RR 107)
He does not remember Millican telling him those could have been her drugs.
(RR 108) He agreed that Battled steadfastly denied that the narcotics were
his. Officer Glenn never personally saw Battle in possession of them. (RR
111)
On redirect, Officer Glenn identified the video taken from the scene as
State’s Exhibit 1. (RR 113) The exhibit was admitted without objection. (RR
114) The trial court viewed the tape. (RR 115)
Chief Deputy Clint Pullin was also in Millican’s apartment when the
calls were made. (RR 118) He testified that they searched her apartment
beforehand to make sure she did not have narcotics and they did not find
any. (RR 119) The first suspect who came to Millican’s apartment was
arrested without incident. Deputy Pullin testified that this suspect had no
opportunity to throw any narcotics on the floor of the apartment. (RR 120)
When Battle arrived and Officer Glenn attempted to apprehend him,
Deputy Pullin testified that Battle’s right arm knocked some items off the
top of the television and they fell to the floor. Officer Glenn then patted him
down for narcotics and weapons and found none. (RR 121)
Appellant’s Brief Page 16
Deputy Pullin did not see Battle throw anything down. But because
Millican had called Battle for a drug deal and because the deputy had seen
Battle’s arm come across the top of the television and knock some things to
the floor, he searched around the television and found a baggie of
methamphetamine. (RR 122) He found the other baggie behind the
television. (RR 123) It was clear from Battle’s telephone conversation with
Millican that she wanted to buy drugs from him. (RR 125)
On cross-examination, Deputy Pullin acknowledged that he did not
personally search Millican’s apartment. (RR 127-128) He also agreed that
Battle thought the drugs were planted. (RR 128)
DPS forsenic scientist Brian Kivlighn testified that one of the baggies
contained 1.66 grams of methamphetamine and the second bag contained
2.33 grams. (RR 136) Collectively, they contained 3.99 grams. (RR 137)
Casey Wilks is an investigator with the Bosque County Sheriff’s
Department. (RR 140) Based on what he overheard in the telephone calls
between Millican and Battle, he understood that Battle was supposed to
bring methamphetamine to the apartment. However, he only heard Battle
make “very vague” statements as best he could recall, and he did not hear
Battle state that he was bringing methamphetamine to Millican. (RR 142)
Appellant’s Brief Page 17
On cross-examination, he conceded that he did not personally see
Battle tossing anything down. He was 10-12 feet away, prepared to use his
taser if necessary. (RR 146)
The State rested after Wilks’s testimony.
Brandon Battle testified in his own defense. (RR 149) He
acknowledged that he had been to prison several times, primarily for drug
offenses. He recalled that, on the date in question, he awakened around noon
after having been up until about 3:00 in the morning. When he awakened,
he found two text messages on his phone from Millican: one proposing oral
sex and and one asking for a teener. He did not respond to the latter message.
(RR 150) When he returned Millican’s calls, she told him she needed a “T.”
He told her that he did not have any drugs but he was on the way to follow
up on her invitation for sexual activity. (RR 150-51)
Not one time did I ever say anything about dope or price of dope
as Officer Glenn said. That was her. All I said is I would get
dressed and I’ll be on my way.
(RR 151)
Battle insisted that he did not have any methamphetamine or throw
any down on that occasion. In fact, he was “one thousand percent certain”
that his fingerprints would not be on the baggies. (RR 152) He explained that
Appellant’s Brief Page 18
he has a good-paying job with Big Creek Construction, has started a family,
owns a home and car, and had changed his life after all those years in prison.
He had no need or incentive to sell drugs. (RR 152-53) He is on parole and
regularly meets with his parole officer as required. He explained that the
parole office did not oppose his release on bond in this case because they
considered the case to be frivolous. The district attorney’s office took no
action on the case for over six months. (RR 153-54) He concluded his direct
testimony by again insisting that he did not throw the narcotics down in
Millican’s apartment and did not possess any narcotics on that occasion. (RR
154)
On cross-examination, Battle testified about his prior convictions. (RR
155-157) He insisted that he went over to Millican’s apartment only for oral
sex. (RR 158) He agreed that Millican asked for a teener but observed that no
witness testified that he had offered to sell her any narcotics. The only
testimony was that he said he was getting dressed and then would come
over. (RR 159-60) Battle believes that he was set up and the drugs were
planted. (RR 163)
Appellant’s Brief Page 19
On redirect, he explained that he decided to waive his right to a jury
trial and go before the judge because he felt the judge would give him a fair
trial. (RR 172)
After considering the evidence and argument, the trial court found
Battle “guilty of the offense of possession of a controlled substance,
methamphetamine, one gram or more, but less than four grams as alleged in
the indictment.” (RR 180)
The punishment phase consisted of Battle pleading true to the
enhancement allegations. (RR 181-82) After hearing very brief argument, the
trial court sentenced Battle to twenty-five years’ imprisonment. (CR 32-33),
(RR 183)
Appellant’s Brief Page 20
Summary of the Argument
Bernard Battle did not have exclusive control of the premises where he
was arrested. Two other drug users/dealers were present. One of them
admitted that the methamphetamine found could be hers and later claimed
it as her own. The circumstantial evidence the State relied on to connect
Battle to the contraband was woefully lacking. Even when viewed in the
light most favorable to the trial court’s finding, the evidence is legally
insufficient to support a finding that Battle knowingly possessed the
narcotics.
Because the evidence referenced above is so weak and because
numerous factors tend to contradict the trial court’s finding that Battle
knowingly possessed the narcotics, the evidence is factually insufficient to
support a finding that Battle knowingly possessed the narcotics.
The judgment recites that Battle was convicted of a first degree felony.
However, possession of between one and four grams of methamphetamine
is a third degree felony. The enhancement allegations have no bearing on
this issue. The judgment should be modified to accurately reflect the offense
of which Battle was convicted.
Appellant’s Brief Page 21
Argument
First Issue: The evidence is legally insufficient to support the trial
court’s finding that Battle knowingly possessed the
narcotics found in the apartment.
Battle did not have exclusive control of the premises where he was
arrested. Two other drug users/dealers were present. One of them admitted
that the methamphetamine found could be hers and later claimed it as her
own. The circumstantial evidence the State relied on to connect Battle to the
contraband was woefully lacking. Even when viewed in the light most
favorable to the trial court’s finding, the evidence is legally insufficient to
support a finding that Battle knowingly possessed the narcotics.
A. The Court Reviews the Evidence in a Light Favorable to the Verdict.
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. This “familiar
standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate
facts.”
Appellant’s Brief Page 22
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Juries are permitted to draw multiple reasonable inferences from
the evidence as long as each inference is supported by the
evidence presented at trial, but they are not permitted to draw
conclusions based on speculation. In Hooper, we explained that
“an inference is a conclusion reached by considering other facts
and deducing a logical consequence from them. Speculation is
mere theorizing or guessing about the possible meaning of the
facts and evidence presented.” While a conclusion that is
reached by speculation may not be completely unreasonable,
such conclusion is not sufficiently based upon facts or evidence
to support a conviction beyond a reasonable doubt.
Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper
v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)).
These same principles apply in an appeal following a bench trial.
Bozeman v. State, 340 S.W.3d 515, 519 (Tex. App.—Texarkana), rev’d on other
grounds, 353 S.W.3d 886 (Tex. Crim. App. 2011).
B. The Evidence Must Link the Accused to the Narcotics.
The State had to prove, among other things, that Battle knowingly
possessed the methamphetamine. To prove possession, the State had to
present evidence that Appellant exercised “actual care, custody, control, or
management” of the methamphetamine. Poindexter v. State, 153 S.W.3d 402,
Appellant’s Brief Page 23
405–06 (Tex. Crim. App. 2005); Triplett v. State, 292 S.W.3d 205, 208 (Tex.
App.—Amarillo 2009, pet. ref’d).
And when the accused did not have exclusive possession of the
location where the narcotics were found, the State must offer evidence of
additional independent facts or circumstances that tend to connect or link
the accused to the narcotics. Poindexter, 153 S.W.3d at 406; Triplett, 292
S.W.3d at 208; see Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App.
2006).
This Court has identified the following potential links that may tend
to connect the accused to the narcotics:
(1) whether the contraband was in plain view or recovered from
an enclosed place; (2) whether the defendant was the owner of
the premises or had the right to possess or control the place
where the contraband was found; (3) whether the defendant was
found in possession of a large amount of cash; (4) whether the
contraband was conveniently accessible to the defendant; (5)
whether the contraband was found in close proximity to the
defendant; (6) whether an odor of contraband was present; (7)
whether the defendant possessed other contraband when
arrested; (8) whether the defendant possessed paraphernalia to
use the contraband; (9) whether paraphernalia to use the
contraband was available to or in plain view of the defendant;
(10) whether the physical condition of the defendant indicated
recent consumption of the contraband in question; (11) whether
conduct by the defendant indicated a consciousness of guilt; (12)
whether the defendant made any incriminating statements when
arrested; (13) whether the defendant attempted to flee; (14)
Appellant’s Brief Page 24
whether the defendant made furtive gestures; (15) whether the
defendant had a special connection to the contraband; (16)
whether the persons present gave conflicting statements about
relevant matters; (17) the quantity of the contraband discovered;
(18) whether the defendant was armed; (19) whether the
defendant was observed in a suspicious place under suspicious
circumstances; (20) whether the accused was familiar or had
previous experience with drugs; and, (21) whether any forensic
evidence (e.g., fingerprints, DNA, etc.) connects the defendant to
the contraband or its container.
Triplett, 292 S.W.3d at 209; see also Evans, 202 S.W.3d at 162 n.12; Stewart v.
State, No. 10-14-00183-CR, 2015 WL 3823273, at *7 (Tex. App.—Waco June
18, 2015, pet. filed) (mem. op., not designated for publication).
No set formula exists for determining whether there are sufficient links
to support an inference of knowing possession. Stewart, 2015 WL 3823273, at
*7; Triplett, 292 S.W.3d at 209. Rather, each case must be examined according
to its own facts. Triplett, 292 S.W.3d at 209. The number of links is not as
important as the combined logical force of the evidence tending to link the
accused to the contraband. Stewart, 2015 WL 3823273, at *7; Triplett, 292
S.W.3d at 209.
C. The Evidence Does Not Link Battle to the Narcotics.
Battle did not have exclusive control of the premises where he was
arrested. Two other drug users/dealers were present. One of them admitted
Appellant’s Brief Page 25
that the methamphetamine found could be hers and later claimed it as her
own. Therefore, the State needed to present additional evidence connecting
Battle to the narcotics he has been accused of possessing. See Evans, 202
S.W.3d at 161–62; Poindexter, 153 S.W.3d at 406; Triplett, 292 S.W.3d at 208.
However, the links are woefully lacking.
Here counsel discusses the factors that this Court has identified as
significant in connecting an accused such as Battle to contraband:
1) it cannot be said that the contraband was in plain view. A review
of State’s Exhibit 1 indicates that Deputy Pullin “found” the first
baggie over two minutes after Battle was arrested. 10 Yet, the area
around the television was not in any manner cluttered so as to
obstruct the officers’ view. It took him another two and a half
minutes to “find” the second baggie. (SX 1) What took so long?
2) Battle did not own the premises.
3) Battle did not have a large amount of cash.
4) The contraband was not conveniently accessible to Battle.
5) The contraband was allegedly found somewhat near Battle.
6) There was no odor of contraband present.
7) Battle did not possess any other contraband.
10
Officer Glenn had complete control over Battle without further resistance at 00:34
on the video. It appears that Deputy Pullin “discovered” the first baggie at around 02:38.
He did not “discover” the second baggie until around 05:05 on the video. (SX 1)
Appellant’s Brief Page 26
8) Battle did not have any drug paraphernalia.
9) There was no drug paraphernalia in plain view.
10) Battle was not under the influence of anything.
11) Battle’s conduct was consistent with lack of guilt—not
consciousness of guilt. He did not resist arrest. His response
when confronted with the contraband speaks volumes as to his
innocence.
12) Battle made no incriminating statements and insisted on his
innocence.
13) Battle did not resist arrest or try to flee.
14) The State will likely argue that Battle made a furtive gesture
when Officer Glenn first alerted him to the officers’ presence. But
the video does not support that. Battle’s hands were in his
pockets until the officers took him down.
15) Battle had no special connection to the contraband.
16) Battle provided a consistent response regarding his lack of
knowledge about the contraband which he continues to
maintain.
17) The officers “found” a relatively small quantity of contraband in
terms of that which would be readily apparent to a casual
observer.
18) Battle was not armed.
19) Battle was arguably in a suspicious place under suspicious
circumstances because Millican was trying to set up drug deals.
20) Battle has previous experience with narcotics.
Appellant’s Brief Page 27
21) There were no fingerprints or other forensic evidence connecting
Battle to the contraband.
See Triplett, 292 S.W.3d at 209.
To summarize, the only links tending to connect Battle to the narcotics
were: (1) he was in the vicinity of where the narcotics were allegedly found;
(2) he purportedly made a furtive gesture although the video evidence does
not support this assertion; (3) he was in a suspicious place under suspicious
circumstances; and (4) he has a prior drug history.
The first two of these links are quite tenuous due to the nature of the
circumstantial evidence, particularly when viewed in conjunction with the
video evidence. The other two links, without more, offer no significant
weight to the evidence. For these reasons, the combined logical force of these
factors do not sufficiently link Battle to the narcotics that the State has
accused him of possessing.
Accordingly, the evidence is legally insufficient to support the trial
court’s finding that Battle knowingly possessed the narcotics.
Appellant’s Brief Page 28
D. The Court Must Reverse and Render a Judgment of Acquittal.
When the evidence is legally insufficient, the proper remedy is to
reverse the judgment of conviction and render a judgments of acquittal. See
TEX. R. APP. P. 43.2(c); Byrd v. State, 336 S.W.3d 242, 258 (Tex. Crim. App.
2011).
For these reasons, because the evidence is legally insufficient to prove
that Battle knowingly possessed the contraband, Battle asks the Court to
reverse the judgment of conviction for possession of methamphetamine and
render a judgment of acquittal.
Appellant’s Brief Page 29
Second Issue: The evidence is factually insufficient to support the trial
court’s finding that Battle knowingly possessed the
narcotics found in the apartment.
Battle did not have exclusive control of the premises where he was
arrested. Two other drug users/dealers were present. One of them admitted
that the methamphetamine found could be hers and later claimed it as her
own. The circumstantial evidence the State relied on to connect Battle to the
contraband was woefully lacking. Because the evidence is so weak and
because numerous factors tend to contradict the trial court’s finding that
Battle knowingly possessed the narcotics, the evidence is factually
insufficient to support this finding.
A. The Court of Criminal Appeals is Reconsidering Brooks.
In Brooks, a plurality of the Court of Criminal Appeals concluded that
Texas appellate courts should not consider factual-insufficiency claims
because, among other things, the standard of review had become
“indistinguishable” from the legal-insufficiency standard of Jackson v.
Virginia. Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010)
(plurality op.).
Appellant’s Brief Page 30
That decision has not been without its critics. See, e.g., Johnson v. State,
419 S.W.3d 665, 671 n.2 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); see
also Brooks, 323 S.W.3d at 926-32 (Price, J., dissenting). Among other things,
these opinions refer to the constitutional and statutory authority for
appellate courts to consider factual-insufficiency challenges. For example,
article 44.25 of the Code of Criminal Procedure invests Texas appellate
courts with jurisdiction to reverse a criminal judgment “upon the facts.” TEX.
CODE CRIM. PROC. art. 44.25. Article V, section 6 of the Texas Constitution
provides that the decisions of the courts of appeals “shall be conclusive on
all questions of fact brought before them on appeal.” TEX. CONST. art. V, § 6
(emphasis added).
More importantly, the Court of Criminal Appeals has recently granted
review in a case indicating that the Court is prepared to revisit the viability
of a defendant’s right to challenge the factual sufficiency of the evidence. See
Walker v. State, No. PD-1429-14 (Tex. Crim. App. Oct. 14, 2015) (order
granting discretionary review). The Court granted review in that case and a
companion case on the following issue:
The Court of Appeals erred in finding legally sufficient evidence
in this case, and allows this Court to reexamine the issue of
Appellant’s Brief Page 31
factually sufficient evidence from Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010).
Therefore, Battle presents this issue understanding that the Court of
Criminal Appeals may soon reinstate the factual-insufficiency challenge
authorized both by statute and by the Texas Constitution.
B. The Court Reviews the Evidence in a Neutral Light.
The standard of review for a factual-insufficiency challenge differs
from a legal-insufficiency challenge. The appellate court:
asks whether a neutral review of all the evidence, both for and
against the finding, demonstrates that the proof of guilt is so
obviously weak as to undermine confidence in the jury’s
determination, or the proof of guilt, although adequate if taken
alone, is greatly outweighed by contrary proof . . . to the extent
that the [finding of guilt] is clearly wrong and manifestly unjust.
Ward v. State, 48 S.W.3d 383, 387 (Tex. App.—Waco 2001, pet. ref’d) (quoting
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); accord Assiter v. State,
58 S.W.3d 743, 747-48 (Tex. App.—Amarillo 2000, no pet.).
The appellate court does not employ the prism of the light most
favorable to the verdict when viewing the evidence. Johnson, 23 S.W.3d at 7;
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Assiter, 58 S.W.3d
at 747; Ward, 48 S.W.3d at 387.
Appellant’s Brief Page 32
“The court reviews the evidence weighed by the jury that tends to
prove the existence of the elemental fact in dispute and compares it with the
evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)); Ward, 48 S.W.3d at
387.
The appellate court “does not indulge in inferences.” Johnson, 23
S.W.3d at 7; Ward, 48 S.W.3d at 387. “Rather, it looks at all the evidence on
both sides and then makes a predominantly intuitive judgment.” Johnson, 23
S.W.3d at 7 (quoting William Powers and Jack Ratliff, Another Look at “No
Evidence” and “Insufficient Evidence,” 69 TEX. L. REV. 515, 519 (1991)); Ward, 48
S.W.3d at 388.
When this Court applies this standard to the evidence, the Court will
be left to conclude that the evidence is factually insufficient to support the
trial court’s finding that Battle knowingly possessed the narcotics.
C. The Evidence is Factually Insufficient to Link Battle to the Narcotics.
Battle did not have exclusive control of the premises where he was
arrested. Two other drug users/dealers were present. One of them admitted
that the methamphetamine found could be hers and later claimed it as her
Appellant’s Brief Page 33
own. Therefore, the State needed to present additional evidence connecting
Battle to the narcotics he has been accused of possessing. See Evans, 202
S.W.3d at 161–62; Poindexter, 153 S.W.3d at 406; Triplett, 292 S.W.3d at 208.
As previously discussed, the only links tending to connect Battle to the
narcotics were: (1) he was in the vicinity of where the narcotics were
allegedly found; (2) he purportedly made a furtive gesture although the
video evidence does not support this assertion; (3) he was in a suspicious
place under suspicious circumstances; and (4) he has a prior drug history.
By contrast, numerous factors tend to contradict the trial court’s
finding that Battle knowingly possessed the narcotics: (1) Millican claimed
ownership of the narcotics in a Facebook message (RR 74); (2) Millican
testified that the “it might have been a possibility” that the narcotics were
hers (RR 73-74); (3) the video evidence does not support the trial court’s
finding because it shows Battle with his hands in his pockets when the police
take him down—in other words, he did not have an opportunity to discard
any contraband (SX 1); (4) the length of time it took the officers to “find” the
two baggies in that small, uncluttered area of the living room contradicts the
State’s theory that Battle had discarded the contraband (SX 1); (5) the State
offered no affirmative testimony that anyone heard Battle agree to bring
Appellant’s Brief Page 34
Millican any narcotics; and (6) Battle’s fingerprints were not on the baggies.
(RR 100). In fact, counsel could go through the other 15 factors listed earlier
in the brief that do NOT tend to connect Battle to the narcotics, because each
of them tends to contradict the trial court’s finding. 11
For these reasons, Battle contends that: (1) the evidence tending to
connect him to the narcotics “is so obviously weak as to undermine
confidence” in the trial court’s finding; or alternatively (2) the evidence
tending to connect him to the narcotics, “although adequate if taken alone,
is greatly outweighed by contrary proof . . . to the extent that the [finding of
guilt] is clearly wrong and manifestly unjust.” See Denny v. State, No. 13-00-
00510-CR, 2001 WL 34615524, at *3 (Tex. App.—Corpus Christi 2001, pet.
ref’d) (not designated for publication); White v. State, 890 S.W.2d 131, 139
(Tex. App.—Texarkana 1994, pet. ref’d); see also Johnson, 23 S.W.3d at 11;
Assiter, 58 S.W.3d at 747-48; Ward, 48 S.W.3d at 387.
11
For clarity, the other 15 factors were those numbered 2-4, 6-13, and 15-18.
Appellant’s Brief Page 35
D. The Court Must Reverse the Judgment and Remand for a New Trial.
When the evidence is factually insufficient, the proper remedy is to
reverse the judgment of conviction and remand for a new trial. See TEX. R.
APP. P. 43.2(d); Clewis, 922 S.W.2d at 133-34; Denny, 2001 WL 34615524, at *3;
Assiter, 58 S.W.3d at 748; Ward, 48 S.W.3d at 387; White, 890 S.W.2d at 139.
For these reasons, because the evidence is factually insufficient to
prove that Battle knowingly possessed the contraband, Battle asks the Court
to reverse the judgment of conviction for possession of methamphetamine
and remand this case for a new trial.
Appellant’s Brief Page 36
Third Issue: The judgment incorrectly recites that Battle was
convicted of a first degree felony.
The judgment recites that Battle was convicted of a first degree felony.
However, possession of between one and four grams of methamphetamine
is a third degree felony. The enhancement allegations have no bearing on
this issue. The judgment should be modified to accurately reflect the offense
of which Battle was convicted.
A. The Trial Court Must Enter a Proper Judgment.
“On each verdict of acquittal or conviction, the proper judgment shall
be entered immediately.” TEX. CODE CRIM. PROC. art. 37.12. Among other
things, a “proper judgment” must reflect “[t]he offense or offenses for which
the defendant was convicted.” Id. 42.01, § 1(13); see Mitchell v. State, 942
S.W.2d 170, 173-75 (Tex. App.—Amarillo 1997, pet. ref’d).
B. No Objection is Required.
Because article 37.12 imposes a sua sponte duty on the trial court to sign
and enter a “proper judgment,” a complaint regarding erroneous recitals in
the judgment cannot be forfeited by a failure to object in the trial court. See
Garner v. State, 214 S.W.3d 705, 706 (Tex. App.–Waco 2007, no pet.); Cobb v.
Appellant’s Brief Page 37
State, 95 S.W.3d 664, 666-67 (Tex. App.—Houston [1st Dist.] 2002, no pet.);
see also Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet.
ref’d) (“[A]n appellate court, on its own motion, can reform the judgment to
make the record speak the truth. In fact, it has a duty to do so, and such duty
is not dependent upon a request by either party or whether they objected
and preserved error in the trial court.”).
C. The Judgment is Not “Proper.”
The indictment alleged that Battle possessed one gram or more but less
than four grams of methamphetamine, which is a third degree felony. (CR
5); see TEX. HEALTH & SAFETY CODE § 481.115(c). In fact, the indictment states
on its face that the offense charged was a third degree felony. (CR 5) At the
conclusion of the evidence, the trial court pronounced that it found Battle
“guilty of the offense of possession of a controlled substance,
methamphetamine, one gram or more, but less than four grams as alleged in
the indictment.” (RR 180) And the judgment recites that Battle was convicted
of this offense. (CR 32-33) However, the judgment erroneously recites that
Battle was convicted of a “1ST DEGREE FELONY.” (CR 32)
Appellant’s Brief Page 38
The enhancement allegations do not change the analysis. Rather, the
enhancement allegations merely serve to enhance the applicable
punishment range to that for an habitual offender and do not change the
level of the underlying offense. See Martin v. State, 405 S.W.3d 944, 949-50
(Tex. App.—Texarkana 2013, no pet.).
D. This Court Must Correct the Judgment.
Therefore, Battle asks the Court to modify the judgment to reflect that
the offense of which he was convicted was a third degree felony, not a first
degree felony. See TEX. R. APP. P. 43.2(b) (appellate court may modify the
trial court’s judgment); Garner, 214 S.W.3d at 707; Cobb, 95 S.W.3d at 668;
Asberry, 813 S.W.2d at 531.
Appellant’s Brief Page 39
Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant Brandon
Bernard Battle asks the Court to: (1) reverse the judgment and render a
judgment of acquittal; (2) reverse the judgment and remand this case for a
new trial; (3) modify the judgment by modifying the provision describing
the degree of the offense of which he was convicted and correcting same;
and (4) grant such other and further relief to which he may show himself
justly entitled.
Respectfully submitted,
/s/ Alan Bennett
E. Alan Bennett
SBOT #02140700
Attorney for Appellant
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com
Appellant’s Brief Page 40
Certificate of Compliance
The undersigned hereby certifies, pursuant to Rule of Appellate
Procedure 9.4(i)(3), that this computer-generated document contains 7,162
words.
/s/ Alan Bennett
E. Alan Bennett
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this
document has been served by e-mail on November 18, 2015 to counsel for
the State, B.J. Shepherd at 220thda@gmail.com.
/s/ Alan Bennett
E. Alan Bennett
Appellant’s Brief Page 41