Alicia Nichole Perez v. State

ACCEPTED
03-15-00232-CR
7803373
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/12/2015 2:52:54 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00232-CR
IN THE THIRD COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
11/16/2015 4:13:54 PM
JEFFREY D. KYLE
Clerk
ALICIA NICOLE PEREZ,
Appellant
VS.
THE STATE OF TEXAS,
Appellec
APPELLANT’S BRIEF
SUSAN SCHOON
ORAL ARGUMENT Schoon Law Firm, P.C.
NOT REQUESTED 200 N. Seguin Avenue
New Braunfels, Texas 78130
PH: (830) 627-0044
FAX: (830) 620-5657
susan@schoonlawflrm.com
State Bar No. 24046803
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Appellant: Alicia Nicole Perez
Atto rney for Appellant: Susan Schoon
(on appeal)
Attorney for Appellant: Veronica Legaretta
(at trial)
Attorney for State: Daniel Palmitier, Assistant District Attorney
Trial Court: Honorable Bruce Boyer
Judge
207th Judicial District
TABLE OF CONTENTS
IDENTITY OF PARTIES i
1NIJEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 2
SUMMARY OF ARGUMENT 4
PROFESSIONAL EVALUATION OF THE RECORD 8
PRE-TRIAL OBJECTIONS 5
VOIR DIRE 5
TRIAL OBJECTIONS 6
PROCEDURAL TRIAL OBJECTIONS 10
JURY CHARGE 11
Narrowing Party Liability 11
Joint Possession 12
Objection to the Law of Parties Instruction 17
SUFFICIENCY OF THE EVIDENCE 18
CONCLUSION 18
PRAYER 18
CERTIFICATE OF COMPLIANCE 19
CERTIFICATE OF SERVICE 19
11.
INDEX OF AUTHORITIES
CASES PAGES
Abdnor v. State,
871 S.W.2d 726, 731 (Tex.Gr.App. 1994) 12
Alrnanza v. State,
686 S.W.3d 157 (Tex.Crim.App. 1985) 14
Anders v. Caflfornia,
386 U.S. 738 (1967) 4
Arline v. State,
721 S.W.2d 348 (Tex. Grim. App. 1986) 14
Barron v. State,
353 S.W.3d 879 (Tex. Grim. App. 2011) 14
Bloys v. State,
2005 Tex. App. LEXIS 7188 (Tex. App. Austin Aug. 31, 2005) 7
Brown v. State,
122 S.W.3d 794 (Tex. Grim. App. 2003) 14
Celis v. State,
416 S.W.3d 419 (Tex. Grim. App. 2013) 13
Cude v. State,
716 S.W.2d46 (Tex. Grim. App. 1986) 14
Dinkins v. State,
894 S.W.2d 330 (Tex. Grim. App. 1995) 12
Evans v. State,
202 S.W.3d 158 (Tex. Grim. App. 2006) 10
Flores v. State,
440 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2013) 13
111.
Gainous v. State,
436 S.W.2d 137 (Tex.Crim.App. 1969) 4
Gordon v. State,
No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993
(Tex. App.—Fort Worth Sept. 20, 2012, no. pet.) 14
Grjffln v. State,
614 S.W.2d 155 (Tex.Crim.App. 1981) 18
Guzinan v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) 7
Hawkins v. State,
656 S.W.2d 70 (Tex. Crim. App. 1983) 13
Jacobs v. State,
787 S.W.2d 397 (Tex. Crim. App. 1990) 5
Jackson v. Virginia,
443 U.S. 307 (1979) 18
Kirsch v. State,
357 S.W.3d 645 (Tex. Crim. App. 2012) 13
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990) 8, 9
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) 11
Ross v. State,
2013 Tex. App. LEXIS 44 (Tex. App. Fort Worth Jan. 4, 2013) 14
Russell v. State,
749 S.W.2d 77 (Tex. Crim. App. 1988) 12, 13
Stafford v. State,
813 S.W.2d 503 (Tex.Crim.App. 1991) 18
iv.
State v. Mechier,
153 S.W.3d 435 (Tex. Crim. App. 2005) 8
Stull v. State,
772 S.W.2d 449 (Tex. Crim. App. 1989) 7
Vasquez v. State,
389 S.W.3d 361 (Tex. Crim. App. 2012) 11
Whaley v. State,
717 S.W.2d 26 (Tex. Crim. App. 1986) 13
STATUTES ANI~ RULES
TEX.CODECRIM.PROArt. 14.01 7
TEX.CODE CRTM.PRO Art. 36.14 12
TEx.R.Eviix4O3 8,9
TEX.PENALCODEAnrL Art. 6.01(b) 13
V.
TO THE HONORABLE JUSTICES OF TUE COURT OF APPEALS:
COMES NOW ALICIA PEREZ, Appellant in this cause, by and through her
attorney of record, Susan Schoon, and pursuant to the provisions of
TEx.R.APP.PR0. 38, et seq., files this brief on appeal.
STATEMENT OF TUE CASE
Alicia Perez, Appellant was indicted in Cause Number CR20 12-603 for
possession of a controlled substance. (CR 25)1
The jury found Appellant guilty, and the trial court assessed punishment at
four years in the Texas Department of Corrections/Institutional Division. That
sentence was suspended, and Appellant was placed on probation for four years.
(CR 104) Notice of Appeal was filed on April 17, 2015 (CR 95) The clerk’s record
was filed on 6/12/15 and the reporter’s record was filed on 7/17/15. Three motions
for extension to file brief were granted by this court, with a final one submitted
with this brief on this the l2t`` day of November, 2015.
1 CR refers to Clerk’s Record; RR refers to Reporter’s Record.
1
STATEMENT OF FACTS
At approximately 4:00 A.M. on June 25, 2012, Officer Chris Scott made a
traffic stop on a vehicle in which Appellant was a front-seat passenger. (RR, Vol.
3, p. 28) As he was driving behind the car, he noticed “a lot of movement” from
the front seat occupants. (RR, Vol. 3, p. 26) After the car stopped and the officer
approached, he noticed a third person was “passed out” in the back seat. (RR, Vol.
3, pp. 27-28) The driver did not have a driver’s license, and as Officer Scott was
speaking with her, he saw a pipe sticking out of the area between the seat and the
console. (RR, Vol. 3, p. 29) After calling for back-up, both the driver and
Appellant were told to get out of the car. (RR, Vol. 3, p. 33, 35) The driver was
searched, and found to be in possession of a bag of what was suspected to be
methamphetamine. (RR, Vol. 3, p. 34) Appellant was detained and handcuffed
while the officers woke up the back-seat passenger and got him out of the car. (RR,
Vol. 3, pp. 35, 38) The officer immediately noticed a black magnetic box, typically
used for hiding keys, sticking out of his front pocket. (RR, Vol. 3, p. 98; St.Ex. 2D)
The box contained methamphetamine. (RR, Vol. 3, p. 40) Appellant spoke up and
told the officer that the box belonged to her. (RR, Vol. 3, p. 41-43) When asked,
she said that it contained methamphetamine. (RR, Vol. 3, pp. 41, 43, 54-55, 99;
St.Ex.3) Syringes, butane lighters and “q-tips,” which the officer testified were
typically used for administering drugs, were found within Appellant’s purse. (RR,
2
Vol 3, Pp. 79, 100, 110, 190) A zippered, pink pouch containing a spoon with
“residue” and burn marks was found in the car. (RR, Vol. 3, p. 80) All three
occupants of the vehicle were arrested for possession of a controlled substance. At
trial, the occupant of the back seat, Darwin Heidemeyer testified that he did not
know how the black box got into his pocket. (RR, Vol. 3, P. 188) Appellant
testified that she did not put it into his pocket, but claimed it to keep him from
getting into trouble. (RR, Vol. 4, pp. 75-76) At trial, Appellant admitted that she
knew there were drugs in the car, and admitted having planned to use them. (RR,
Vol. 4, p. 101)
3
SUMMARY OF ARGUMENT
Professional Evaluation of the Record
Counsel has reviewed the appellate record in this cause and reluctantly
concludes that as a matter of professional judgment, the record contains no
reversible error and no jurisdictional defects. Where counsel concludes that there
are no arguable grounds for reversal, she is required to present a professional
evaluation of the record demonstrating why there are no arguable grounds to be
advanced. Anders v. Caflfornia, 386 U.s. 738 (1967); Gainous v. State, 436
5.W.2d 137 (Tex.Crim.App. 1969).
4
PRE-TRIAL OBJECTIONS
There were no pre-trial motions heard, other than a motion in limine filed by
Appellant regarding extraneous offenses, which the trial court granted. (RR, Vol. 2,
p. 215) A motion to suppress evidence was carried with the trial. It is discussed in
the “Trial Objections” section of this brief.
VOIR DIRE
Appellant had no objection to the state’s challenge for cause of one
venireperson. All of Appellant’s challenges for cause were granted, except one.
(RR, Vol. 2, p. 199) However, even if this were error, it was not preserved
because Appellant did not request additional peremptory strikes, or identifS’ an
objectionable juror that was seated on the panel. See Jacobs v. State, 787 S.W.2d
397 (Tex. Crim. App. 1990).
Appellant made two separate objections during the state’s voir dire. (RR,
Vol. 2, pp. 68, 95). The parties approached the bench; however, when asked by the
court reporter whether the discussion needed to be on the record, both times
defense counsel responded that it did not. When the state objected to a question
asked by defense counsel during voir dire, again no record was made of the
discussion or ruling. (RR, Vol. 2, p. 132). Therefore, nothing was preserved for
appeal.
5
TRIAL OBJECTIONS
Motion to Suppress Evidence
Appellant moved to suppress all evidence stemming from her arrest due to
lack of probable cause for the arrest. The trial court held a hearing to consider the
motion during the trial, after Officer Scott had testified. (RR, Vol. 3, p. 171) After
hearing evidence, the trial court denied the motion to suppress. (RR, Vol. 3, p. 176)
Appellant’s argument was that at the point that she was placed under arrest, Officer
Scott had not linked her to the box of methamphetamine found hanging out of
Darwin Heidemeyer’s pocket. (RR, Vol. 3, p. 176) Her argument was that only
after Officer Scott placed Appellant under arrest did he question her about which
box she had been referring to when she had claimed that it was hers. The state
argued, and the trial court agreed that Appellant had claimed the box containing
methamphetamine while detained and handcuffed, but prior to being placed under
arrest, giving Officer Scott the necessary probable cause. Further, they argued that
Officer Scoff knew which box she was referring to, and what it contained because
he had already opened it and recognized the methamphetamine. (RR, Vol. 3, p.
40-41) After he placed the box on the back of the car, Appellant volunteered that it
was hers, and he then read her the Miranda warning. (RR, Vol. 3, p. 41-43) His
continued questioning after he placed her under arrest and gave her Miranda
warnings simply served to further his investigation. (RR, Vol. 3, pp. 173-176)
6
A peace officer may arrest an offender without a warrant for any offense
committed in his presence. TEx. CODE CRIM. PROC. Ann. Art. 14.01.
The test for probable cause for a warrantless arrest is: “Whether at that moment
the facts and circumstances within the officer’s knowledge and of which [he] had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing the arrested person had committed or was committing an offense.”
Guzinan v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) citing Stull v. State,
772 S.W.2d 449, 451 (Tex. Crim. App. 1989).
In Bloys v. State, the defendant admitted to the officer that he was
unlawfully carrying a weapon in his car. This Court held that “appellant’s
admission that he was carrying a handgun in his vehicle was sufficient to give
probable cause for his arrest. . .“ 2005 Tex. App. LEXIS 7188, 2005 WL2094740
(Tex. App. Austin Aug. 31, 2005)(not designated for publication).
Here, Officer Scott had seen what he believed to be methamphetamine, and
Appellant volunteered that it was hers. Similar to Bloys, Appellant’s admission
would provide the necessary probable cause for her arrest.
Objection to State’s Exhibits 7 and 8
Defendant objected to the admission of State’s Exhibits 7 (a pink zippered
pouch) and 8 (a spoon found within the pouch), arguing that because the items
could not be linked to her, their admission was prejudicial and irrelevant. (RR, Vol.
7
3, pp. 106-108) The trial court treated this as an objection under Rule 403 of the
Texas Rules of Evidence, stating for the record, “the question is if it’s prejudicial
to the point where it outweighs its probative value.” (RR, Vol. 3, p. 108)
Additionally, defendant objected that State’s Exhibit 7 contained hearsay because
of the initials “CL” on the pink bag. The court overruled both objections and
instructed the jury to disregard any writing on State’s Exhibit 7.
A trial court is entitled to broad discretion in ruling on a Rule 403 objection.
State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Quoting
Montgomery v. State, the Court referred to two significant rationales for affording
the trial court this broad discretion: “First, Rule 403’s language implies that a
determination under this rule is inherently discretionary with the trial court. Rule
403 provides, in pertinent part, that relevant evidence ‘may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.’
TEX. Rui~E EvID. 403. The inclusion of the word ‘may’ displays the drafter’s intent
to vest the trial courts with substantial discretion. Second, the trial court is in a
superior position to evaluate the impact of the evidence. Unlike the trial court, an
appellate court ‘cannot weigh on appeal ... the intonation and demeanor of the
witnesses preceding the testimony in issue ... nor can we determine the emotional
reaction of the jury to other pieces of evidence . . ..“ Id. at 439 quoting Montgomery
v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).
An analysis under Rule 403 includes at least four factors: (1) the
probative value of the evidence; (2) the potential to impress the jury in some
irrational yet indelible way; (3) the time needed to develop the evidence; and (4)
the proponent’s need for the evidence. Montgomery at 389-90. While the trial court
in this case did not specifically mention these factors, it is clear that his ruling
admitting the evidence was not an abuse of discretion and would not be disturbed
on appeal. The probative value of the evidence was in what the items contained
and for what they were used. Both Officer Kuhl and Darwin Heidemeyer testified
that they were used for injecting drugs. (RR, Vol. 3, pp. 190-9 1) They were found
in the car in which appellant was a passenger, next to the console on the driver’s
side, but in appellant’s reach. (RR, Vol. 3, p. 80) The probative value was in
connecting Appellant and the others in the car to drug use. This factor would
weigh in favor of admission. There was no clear danger of impressing the jury in
an irrational manner, since the jury was provided an explanation for their probative
value, and told where the items were found in the vehicle. This factor would
weigh in favor of admission, as would the third factor—the time to develop the
evidence was minimal. The final factor—the proponent’s need for the evidence
would likely favor admission, as well. Appellant volunteered at the scene that the
drugs found in Darwin Heidemeyer’s pocket were hers. However, at trial, she
argued that she had lied to protect Darwin, and that the drugs were really his. (RR,
Vol. 4, pp. 75-76) Therefore, any additional evidence of thugs or drug
paraphernalia, especially in the vicinity of Appellant would be necessary to link
her to the contraband. “Mere presence at the location where drugs are found is
thus insufficient, by itself; to establish actual care, custody, or control of those
drugs. However, presence or proximity, when combined with other evidence,
either direct or circumstantial (e.g.,” links”), may well be sufficient to establish that
element beyond a reasonable doubt. It is, as the court of appeals correctly noted,
not the number of links that is dispositive, but rather the logical force of all of the
evidence, direct and circumstantial. Evans v. State, 202 S.W.3d 158, 162 (Tex.
Crim. App. 2006)
Therefore, in light of these factors, it would be unlikely that the trial court’s
ruling admitting the evidence would be deemed an abuse of discretion.
PROCEDURAL TRIAL OBJECTIONS
Appellant made several procedural objections throughout the trial, none of
which rose to the level of error and/or harm. They were as follows: 1) “Hearsay”
and “mischaracterization of evidence during state’s opening;” (RR, Vol. 3, p. 11-
14) 2) “Asked and answered;” (RR, Vol. 3, p. 36) 3) “Nonresponsive;” (RR, Vol.
3, p. 37-3 8) 4) “Nonresponsive;” (RR, Vol. 3, p. 137) and 5) “Relevance.” (RR,
Vol. 3, p. 138)
10
JURY CHARGE
Appellant had a number of objections to the jury charge, two of which
constituted error, but caimot be shown to have resulted in harm.
In reviewing a jury charge, the court must first determine if error occurred.
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found, the
Court then determines whether sufficient harm resulted from the error to require
reversal. See Ngo, 175 S.W.3d at 743.
NARROWING PARTY LIABILITY
First, Appellant made a request that the application paragraph of the jury
charge narrow the party liability acts to only those shown by the evidence. This
request was denied, and this was error. (RR, Vol. 4, p. 55-56, 60-6 1).
In Vasquez v. State, the Court of Criminal Appeals was clear:
In sum, a general reference to the law of parties in the application
paragraph is sufficient and is not error when the defendant does not
object and request a narrowing of the specific statutory modes of
conduct that constitute party liability—whether he “solicited,
encouraged, directed, aided or attempted to aid” another specified
person to commit the offense. But if the defendant does request that
the application paragraph refer only to those specific party-liability
acts that are supported by the evidence, then he is entitled to such a
narrowing. The failure to narrow the specific modes of party-liability
conduct when properly requested is reversible error if the defendant
has suffered actual harm to his rights.
389 S.W.3d 361, 368-69 (Tex. Crim. App. 2012)
11
JOINT POSSESSION
Second, Appellant objected to the following paragraphs in the abstract
portion of the jury charge regarding possession: “Possession is a voluntary act if
the possessor knowingly obtains or received the thing possessed or is aware of his
control of a thing for a sufficient time to allow him to terminate his control,” and
“Possession of contraband need not be exclusive to support a conviction of the
unlawfUl possession of a controlled substance; evidence showing an accused
jointly possessed contraband with another is sufficient.” Her objection to these
two paragraphs were that they were “improper as to their comment on the weight
of the evidence.” (RR, Vol. 4, p. 6-7; CR 84-85) The objections were overruled.
The trial court must charge the jury on the “law applicable to the case,”
which requires that the jury be instructed on each element of the offense charged.
See TEX. CODE CRIM. PROC. art. 36.14; Abdnor v. State, 871 S.W.2d 726, 731
(Tex.Cr.App. 1994); Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App.
1995). By statute, the trial court must deliver to the jury a written charge “not
expressing any opinion as to the weight of the evidence, not summing up the
testimony [or] discussing the facts.” TEx. CODE Clutvf. PROC. art. 36.14
The Court of Criminal Appeals, citing Black’s Law Dictionary, defines a
comment upon the evidence as meaning that the “trial judge is prohibited from
conveying to [the] jury [the] trial judge’s personal opinion as to the truth or falsity
of any evidence. . .“ Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988).
A charge that assumes the truth of a controverted fact issue comments on the
weight of the evidence. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.
1986). An instruction is a comment on the weight of the evidence if it singles out a
particular fact and instructs the jury it may consider that fact in determining an
issue in the case. Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983).
More specifically, the Court of Criminal appeals has held that ifajury
instruction or definition originates from the penal code, it is “generally permitted
because it is the applicable statute and, therefore, the ‘applicable law,’ as required
by Article 36.14.” Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013), citing
Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). “By contrast, it is
generally impermissible to instruct on terms not statutorily defined, and the trial
court instead must permit the jury to construe them according to the rules of
grammar and common usage.” Id; Flores v. State, 440 S.W.3d 180, 195 (Tex.
App.—Houston [14th Dist.] 2013)(overruled on other grounds).
Here, we have one of each. The first paragraph is taken out of the Penal
Code: “Possession is a voluntary act if the possessor knowingly obtains or
receives the thing possessed or is aware of his control of the thing for a sufficient
time to permit him to terminate his control.” TEx. PENAL CODE Ann. Art. 6.0 1(b).
The second paragraph, “Possession of contraband need not be exclusive to support
a conviction of the unlawfiil possession of a controlled substance; evidence
showing an accused jointly possessed contraband with another is sufficient” is not
derived from any statute. Instead, it is a rule for assessing the sufficiency of the
evidence. Ross v. State, 2013 Tex. App. LEXIS 44, 2013 WL 43992 (Tex. App.
Fort Worth Jan. 4, 201 3)(not designated for publication) citing Gordon v. State,
No. 02-11-00413-CR, 2012 Tex. App. LEXIS 7993, 2012 WL4121 147, *2n.14
(Tex. App.—Fort Worth Sept. 20, 2012, no. pet. h.) (mem. op., not designated for
publication) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986), for
the proposition that proof ofjoint possession is sufficient to prove possession).
“Texas courts are forbidden from instructing the jury on any presumption or
evidentiary sufficiency rule that does not have a statutory basis.” Ross at *14,
quoting Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003). Thus, the
trial court erred by including the “joint possession” definition in the jury charge.
HARM
Because Appellant objected, she is entitled to a new trial if the errors are not
harmless, but “calculated to injure the rights of the defendant.” Ahnanza v. State,
686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State, 353 S.W.3d 879, 883
(Tex. Crim. App. 2011)(quotingArline v. State,721 S.W.2d 348, 351 (Tex. Crim.
App. 1986) (“[TIhe presence of any harm, regardless of degree, which results from
preserved charging error, is sufficient to require a reversal of the conviction.”)).
14
In reviewing for harm, the appellate court considers all of the evidence, the
entire jury charge, and the parties’ arguments. Louis, 393 S.W.3d at 271, 272.
The jury heard evidence and watched the video of the traffic stop and
subsequent arrest. (St.Ex. 3 & 9; Def.Ex.2) In addition to claiming the
methamphetamine as her own, in the video from the patrol car, Appellant says that
she should have thrown the drugs from the car, and that she hopes she does not
have anything on her. (RR, Vol. 4, pp. 85, 95)
Appellant’s testimony was particularly damaging to her defense. Under
cross-examination from the state, she admitted two times having lied during
her direct testimony. (RR, Vol. 4, p. 80, 91) One of the lies concerned whether she
knew there were drugs in the car. On direct, she said she did not know, but under
cross, she admitted that she did know, and further knew it was methamphetamine.
(RR, Vol. 4, p. 83, 91) Appellant admitted that she had needles commonly used to
shoot methamphetamine in her purse, as well as “q-tips” used to filter the drug, and
butane lighters. (RR, Vol. 4, p. 93) Finally, under cross, she admitted that she
had planned to get high with her friends that night (RR, Vol. 4, p: 101)
This testimony was especially harmful in light of her defense—that she had
lied to the officer and claimed the drugs, even though they were not hers, to keep
her boyfriend from getting in trouble. (KR, Vol. 4, pp. 75-76)
15
The jury was charged on three alternate theories of appellant’s guilt: 1) that
she was guilty as the primary actor; 2) that she was guilty as a party, in that she
intended to assist another party to possess methamphetamine and encouraged,
solicited, directed, aided or attempted to aid in possession of methamphetamine; or
3) that she, with the requisite culpability, caused or aided an innocent or non-
responsible party to engage in the prohibited conduct. (CR 84-8 8)
Based on the evidence and testimony, it is unclear how the failure to narrow
the acts of party liability—whether she encouraged, solicited, directed, aided or
attempted to aid—caused harm to Appellant because of the three alternative means
charged. As the State pointed out in their closing:
When you claim ownership of methamphetamines, when you’re carrying a
meth kit in your purse, when you’re carrying syringes in your purse,
when you admit to knowing about the methamphetamine in the vehicle, and
you admit that your intent was to get high that night, that, ladies and
gentlemen, is possession of a controlled substance in the state of Texas.
When you put methamphetamine on another person, that’s possession of a
controlled substance in the state of Texas.
And when you aid, attempt to aid, encourage, solicit someone else to commit
the offense of possession of a controlled substance, that’s also committing
the offense of possession of a controlled substance.
(RR, Vol. 4, p. 113)
16
OBJECTION TO THE LAW OF PARTIES iNSTRUCTION
Appellant objected to the inclusion ofjury instructions regarding the law of
parties. (RR, Vol.4, p. 10-11) Her argument was that since Darwin Heidemeyer
claimed both at the time of the event, and at trial that he had no idea the drugs had
been placed in his pocket while he was sleeping, there was no evidence from which
the court could determine that two or more persons actively participated in
committing the offense. “The defendant cannot aid in the commission of an
offense if Darwin didn’t—if the other party did not know it was being committed.”
(RR, Vol. 4, p. 11) The trial court overruled the objection, and instructed the jury
on the law of parties. (CR 85-86)
Appellant’s argument ignores her own testimony that, although she did not
place the drugs in Darwin Heidemeyer’ s pocket, she was planning to get high that
night with the other people in the car. (RR, Vol. 4, p. 101) From that testimony, as
well as her statements from the patrol car—that she hoped she didn’t “have
anything on me,” and that she should have thrown the drugs out of the car—
as well as her admission that she lied on the stand about knowing whether there
were drugs in the car, the trial court could find evidence to support a charge on the
law of parties. (RR, Vol. 4, pp. 83-85)
.1/
SUFFICIENCY OF TILE EVIDENCE
As stated, Appellant admitted to the arresting officer that the drugs in the
black box sticking out of Darwin Heidemeyer’s pocket were hers. She possessed
drug paraphernalia in her purse, and within her reach in the car. She testified that
she was planning to get high with the people in the car. The evidence in this case
is therefore legally sufficient to support the allegations. Jackson v. Virginia, 443
U.s. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981).
CONCLUSION
Because counsel is unable to raise any arguable issues for appeal, he is
required to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503
(Tex.Crim.App. 1991). Accompanying this brief is counsel’s motion to withdraw
on these grounds.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays
that this Court permit her to withdraw after this Court’s own examination of the
record in this cause and to afford Appellant his right to file anypro se brief he may
wish to file.
18
Respectfully Submitted:
Schoon Law Firm, P.C.
200 N. Seguin Avenue
New Braunfels, TX 78130
State Bar No. 24046803
PH: (830) 627-0044
FAX: (830) 620-5657
susan@schoonlawfirm.com
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
According to Microsoft Word’s word count tool, this document contains 4080
words.
CERTIFICATE OF SERVICE
I hereby certifS’ that a true and correct copy of Appellant’s Brief was delivered to
the District Attorney of Comal County, Texas on this the 12th day of November,
2015 by email to preslj~co.comal.tx.us
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