ACCEPTED
05-14-00076-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/13/2015 10:27:52 AM
LISA MATZ
CLERK
No. 05-14-00076-CR
The State requests argument
IN THE only if Appellant
RECEIVEDargues
IN
5th COURT OF APPEALS
DALLAS, TEXAS
FIFTH COURT OF APPEALS 3/13/2015 10:27:52 AM
LISA MATZ
Clerk
OF TEXAS
AT DALLAS, TEXAS
______________________________
JAMES LOYD BANKSTON
V.
STATE OF TEXAS
______________________________
On Appeal from the County Court at Law,
Kaufman County, Texas, in Cause Number 31508CC
_______________________________
BRIEF OF THE STATE OF TEXAS
_______________________________
Counsel of Record:
ERLEIGH NORVILLE WILEY
KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY
SUE KORIOTH
ASSISTANT DISTRICT ATTORNEY
SBN# 11681975
100 W. MULBERRY
KAUFMAN, TEXAS 75142
972 932-0260
ATTORNEYS FOR THE APPELLEE, fax 972 932-0357
THE STATE OF TEXAS suekorioth@aol.com
IDENTITY OF PARTIES AND COUNSEL:
Appellant: James Loyd Bankston
APPELLANT’S TRIAL COUNSEL: Andrew Jordan
APPELLANT’S COUNSEL ON THIS APPEAL: Lara Bracamonte
APPELLEE: the State of Texas
APPELLEE’S TRIAL COUNSEL: Erleigh Norville Wiley, Kaufman County
Criminal District Attorney, and Assistant Criminal District Attorneys
Phil Williams and Daniel T Floyd
APPELLEE’S COUNSEL ON THIS APPEAL: Erleigh Norville Wiley, Kaufman
County Criminal District Attorney; Sue Korioth, Assistant Criminal District
Attorney
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -v-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
STATE’S COUNTERPOINT ONE
Appellant waived review of the issue he argues on appeal; his complaint at trial
does not comport with the issue on appeal. In any event, the trial court acted
within its discretion in denying appellant’s motion to suppress
STATE'S COUNTERPOINT TWO
The evidence was sufficient to support the jury's verdict.
STATE'S COUNTERPOINT THREE
The trial court did not abuse its discretion in refusing appellant's requested
lesser-included-offense instruction. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
STATE’S COUNTERPOINT ONE, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
STATE’S COUNTERPOINT TWO, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
STATE’S COUNTERPOINT THREE, restated. . . . . . . . . . . . . . . . . . . . . . . . . -20-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
RULE 9.4 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . -22-
-iii-
INDEX OF AUTHORITIES
CASES
Bekendam v. State,
441 S.W.3d 295 (Tex. Crim. App. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . -13-
Burrell v. State,
445 S.W.3d 761 (Tex. App. – Houston [1st Dist.] 2014, pet. ref’d). . . . . -17-
Evans v. State,
202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . -17-, -18-
Garcia v. State,
No. 05-10-00521-CR, 2011 WL 5231426
(Tex. App. – Dallas Nov. 3, 2011, no pet.)
(not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
Goad v. State,
354 S.W.3d 443 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . -21-
Moskey v. State,
333 S.W.3d 696 (Tex. App. – Houston [1st Dist.] 2010, no pet.). . . . . . . -15-
STATUTES
Tex. Code Crim. Proc. article 59.04(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
Tex. Transp. Code Sec. 601.051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
RULES
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No. 05-14-00076-CR
IN THE
FIFTH COURT OF APPEALS
OF TEXAS
AT DALLAS, TEXAS
______________________________
JAMES LOYD BANKSTON
V.
STATE OF TEXAS
______________________________
TO THE HONORABLE JUDGES OF SAID COURT:
The State of Texas, appellee herein, respectfully submits this brief in response
to appellant’s brief, and would show the Court:
STATEMENT OF THE CASE
Appellant James Loyd Bankston was indicted for possession of
methamphetamine, four grams or more but less than 200 grams, with intent to deliver.
(CR: 7). He pleaded not guilty but was convicted by a jury, which found the
enhancement paragraphs to be true and assessed his punishment at confinement for
45 years in TDCJ. (CR: 226). Appellant gave notice of appeal of his conviction to this
Court.
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STATE’S COUNTERPOINT ONE
Appellant waived review of the issue he argues on appeal; his complaint at trial
does not comport with the issue on appeal. In any event, the trial court acted
within its discretion in denying appellant’s motion to suppress.
STATE'S COUNTERPOINT TWO
The evidence was sufficient to support the jury's verdict.
STATE'S COUNTERPOINT THREE
The trial court did not abuse its discretion in refusing appellant's requested
lesser-included-offense instruction; in any event, any error was harmless.
SUMMARY OF THE ARGUMENT
Appellant claims that the trial court erred in denying his motion to suppress;
the State contends appellant waived the issue regarding propriety of the inventory
search by failing to present it to the trial court and that, in any event, the trial court
properly denied the motion to suppress. In response to appellant’s second and third
issues, the State contends that the evidence was sufficient to link appellant to the
contraband and that the trial court properly refused the requested lesser included
offense.
STATEMENT OF PERTINENT FACTS
The indictment alleged that appellant did “ intentionally or knowingly possess,
with intent to deliver, a controlled substance, namely methamphetamine, in an amount
of four grams or more but less than 200 grams.” (CR: 7). The trial court heard
appellant’s motion to suppress on October 25, 2013. (RR2: 4). Defense counsel
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commenced the hearing by announcing to the court that appellant would only contest
“the basis for the stop. . . . We’re narrowing our Motion to Suppress to the stop.”
(RR2: 4).
The State’s first witness, Kaufman County Sheriff’s Deputy Keith Wheeler
testified that he was assigned to patrol and was working “running traffic up around
Elmo” on October 16, 2012 from 6 a.m. to 6 p.m. (RR2: 5-6). He was working alone
in a marked patrol unit when he saw a truck leaving a known drug house on County
Road 352. (RR2: 6). He could see that the truck had two occupants; he followed the
truck to the intersection of county roads 352 and 390, where it made a right hand turn
while failing to use a turn signal. (RR2: 7-8). Wheeler testified that the intersection
was one at which a turn signal would be required before making a turn. (RR2: 9).
Wheeler testified that he followed the truck and initiated a traffic stop as soon as they
reached a safe location. (RR2: 10).
Wheeler testified that the driver of the truck stopped in a driveway on county
road 2728. (RR2: 11-12). Appellant was not driving but was in the front passenger
seat. (RR2: 12). Defense counsel showed Wheeler a Google Maps aerial photo, and
Wheeler testified that the photo did not accurately depict the intersection in question.
(RR2: 14-15). Wheeler described the intersection in question, County Roads 352 and
390 as “a cross street. It’s two county roads, they meet; 390 crosses 352. 352 heads
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north and 390 crosses it, and there’s a street on both sides. It’s a four-way stop.
(RR2: 15).
The State rested on the motion to suppress after Wheeler’s testimony, and
appellant presented no witnesses. (RR2: 17). The State argued to the court that the
traffic violation was sufficient to justify the traffic stop; appellant argued that it was
a “pretextual stop.” (RR2: 17-18). Defense counsel asked the court “to conduct its
own investigation” and urged the court to find, based upon defense aerial photos
which had not been offered or admitted in evidence, that the location of the stop was
not an intersection and that appellant was not required to signal his turn there. (RR2:
18-19). The court denied the motion to suppress based upon the officer’s testimony
and the absence of any evidence to the contrary. (RR2: 20-21).
The trial court called the case for jury trial on January 13, 2014, after which
time defense counsel noted that the court had previously heard appellant’s motion to
suppress and denied it. (RR3: 7-9). After the jury was selected, the State called
Deputy Keith Wheeler again to testify before the jury. (RR3: 132). Wheeler testified
that he had worked for Kaufman County Sheriff’s Office for approximately ten years,
that he achieved the rank of Corporal, that he had worked as a Canine Officer, and
that he was a Field Training Officer (FTO). (RR3: 132-33). Wheeler testified to his
activities on the date of this offense, October 16, 2012. (RR: 133-34). He described
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the location near the Elmo community where he was patrolling that afternoon and
explained that he was watching a drug house on the north side of Highway 80. (RR3:
135-36). He explained that he was aware of numerous stops and arrests of persons
in vehicles coming from that house; methamphetamine was the drug that had been
recovered previously from visitors to that house. (RR3: 136).
Wheeler testified that at about 2:43 p.m. that day, he saw a Dodge pickup truck
pull out of the driveway at that location; he pulled out to follow the Dodge pickup,
intending to stop the vehicle if the driver committed a traffic violation. (RR3: 138).
Wheeler testified that he followed the truck down county road 352 until it turned onto
county road 390 without using the turn signal as required. (RR3: 138-39). Wheeler
testified that he continued to follow the truck after the traffic violation until the truck
turned onto county road 2728, at which time he initiated a traffic stop. (RR3: 140-
41). Wheeler explained that his dash-cam video does not record all the time but
instead records after he turns on his emergency lights. (RR3: 141).
Wheeler sponsored introduction of State’s exhibits 1 and 2, the dashcam video
and a map of the area. (RR3: 142-44). He pointed out the locations where he saw the
vehicle leave the drug house, saw the traffic violation, and stopped the vehicle. (RR3:
144-47). Wheeler testified that he stopped the vehicle, and he identified appellant
in open court as the passenger. (RR3: 149-50). Wheeler explained that when he
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stopped the vehicle, he approached on foot, spoke to the driver, and requested her
driver’s license and proof of insurance. (RR3: 150). He told her why she was
stopped, for failing to signal a turn, and she explained that she was only just learning
to drive a standard truck and that the truck belonged to appellant. Wheeler identified
State’s exhibit 3, a certificate of title showing that the truck belonged to James C
Bankston and appellant’s mother Bertha Bankston from November 2000. (RR3:
152). He testified further that after this arrest, in January 2013, the vehicle title
showed previous owners as “Shaila Shirley and James Bankston.” State’s exhibit
three includes forfeiture judgments showing that forfeiture proceedings filed against
the vehicle named both Shirley and appellant as putative owners and that default
judgments were entered against each of them. (RR3: 152).
Wheeler testified that when he stopped the vehicle he asked for – and both
driver and passenger provided – identification. Neither could produce any valid proof
of insurance. (RR3: 152-54). Wheeler informed both occupants of the vehicle that
they could receive a citation and the vehicle could be towed if there was no insurance,
because without insurance the vehicle could not be driven on public roadways. (RR3:
154). Wheeler determined that there was no insurance based upon the absence of
proof as well as appellant’s admission to him that there was no current insurance.
(RR3: 155). Wheeler informed them that the vehicle would be impounded; the
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occupants were out of the vehicle, and he performed an inventory of its contents prior
to it being towed to prevent civil liability for later claims of lost items and to
safeguard valuables that were present. (RR3: 155-56).
Wheeler testified that in the course of performing the inventory, he found drugs
and drug paraphernalia in the car: a used syringe with a red substance (blood) at the
end in the driver’s side floor; a small packet of a crystalline substance which appeared
to be methamphetamine wrapped in male clothing in the backseat; and scales and
empty plastic bags in some black pouches hidden under or between the driver and
passenger seats. Wheeler testified that these bags and scales could be used to divide
larger packets of drugs into smaller portions for resale. (RR3: 156-58). Wheeler
spoke to both occupants, and when neither claimed ownership of the drugs and
paraphernalia, he advised them that they would both be arrested for possession of
drug paraphernalia. (RR3: 158-59). After he informed them that they were being
arrested, Shaila Shirley (the driver) spoke to him and advised that she had
methamphetamine in her pants. Wheeler had her retrieve it; he testified that male
officers do not pat down female offenders and that the patrol division of the Kaufman
Sheriff’s Office is mostly male officers. (RR3: 159-60). Shirley had five packets of
what he believed to be methamphetamine and 13 prescription pills hidden in her
pants. (RR3: 161).
-7-
Wheeler testified that he also found $1900.00 in cash in Shirley’s purse in the
truck. (RR3: 161-62). Wheeler pointed out on photos, State’s exhibits 1 and 2, where
he found the various items in the truck on the inventory search. (RR3: 164-66).
Wheeler testified that when he asked appellant whether there was anything in the
truck that he (Wheeler) needed to know about and appellant responded, “if there is
it isn’t mine,” Wheeler thought that was suspicious. Appellant showed Wheeler the
place on his arm where he “shot up,” and appellant told Wheeler he had shot up that
morning. (RR4: 8-10). Wheeler testified that dealers may have buyers use in their
presence to prove they are not working for law enforcement, because informants are
not permitted to use drugs. (RR4: 10).
Wheeler sponsored admission of State’s exhibit 8, which was the six plastic
baggies of drugs he seized that day, and State’s exhibit 9, which contained thirteen
pills containing clozapine hydrochloride (an antipsychotic). (RR4: 11-13). He
identified State’s exhibit 10 and 10A, the syringe he recovered from the floor of the
truck and the container it was stored in. (RR4: 13-15). He identified State’s exhibit
11, the bag containing two black pouches which held empty plastic bags and a scale,
which Wheeler recovered from the truck. (RR4: 15-16). Finally, he identified State’s
exhibit 12, the container holding $1920.00 found inside Shirley’s purse. (RR4: 16-
17). The exhibits were admitted. (RR4: 25-26).
-8-
Over appellant’s objection, Wheeler testified to “what situation” he
encountered that day:
I seen the vehicle parked at a known drug house known for dealing
drugs, selling drugs. The vehicle left, I stopped the vehicle, found
paraphernalia inside. It's a common practice for, in my experience that,
the male will find a female to drive the vehicle preferably without a
criminal history because they know if they do get stopped by the police
and they hide the drugs on a female's person that there's a better chance
that it will not be found just due to the fact that we're not allowed to
search certain areas on a female. With the paraphernalia inside the truck,
he informed me that he shot up that morning. You know, that to me that
shows that he was showing the dealer, you know, that he could trust him
and to purchase the narcotics from him.
(RR4: 28). In response to additional questions from the prosecutor, Wheeler testified
that he noted the amount of methamphetamine seized that day and that when
considered with the paraphernalia seized, it was consistent with intent to deliver.
(RR4: 28). Wheeler testified that the amount of methamphetamine seized was
inconsistent with possession only for personal use. (RR4: 29). Wheeler testified that
the sixth baggie was found in male clothing inside a black duffel bag that appellant
claimed was his bag. (RR4: 33).
The State next called Texas DPS Forensic Scientist Nick Grizzle, who testified
that he was assigned to work at the DPS laboratory in Garland, about the process of
forensic drug testing, and about testing the drugs in this case. (RR4: 44-49). Grizzle
testified that he tested all six of the baggies of drugs seized in this case and contained
-9-
in State’s exhibit 8. In addition, he analyzed the prescription drugs contained in
State’s exhibit 9. (RR4: 49-50). He sponsored admission of his report, State’s
exhibit 13, which reflects that the net weight of methamphetamine in the six bags was
15.95 grams. (RR4: 51-52). He also determined that the illegally possessed pills
hidden in Shirley’s pants were cyclobenzaprine (a muscle relaxer). (RR4: 53-55).
Grizzle did not weigh each of the six baggies separately. (RR4: 56-57).
Kaufman County Sheriff’s Sergeant Keith Ramsey next testified that he was
the narcotics investigator for the county; he testified to his training and experience
in narcotics investigation. (RR4: 58-60). Ramsey testified that most users purchase
only 1 or 2 grams at a time; he explained that dealers will sometimes give a price
break over ½ ounce and that a buyer will sometimes sell enough to finance what they
personally use. Ramsey explained that most methamphetamine now in Kaufman
County comes from Mexico. (RR4: 62-63). Ramsey testified that he uses informants
in his investigations but that they are not permitted to use drugs or commit crimes
themselves. (RR4: 63-64). Ramsey testified that it is common for people to sample
drugs or be asked to use at the time of purchase, “kind of a trust issue.” (RR4: 64).
He explained that the expectation that a buyer will use decreases when larger amounts
of drugs are involved. (RR4: 65).
Ramsey testified that methamphetamine is generally ingested by smoking,
-10-
injecting, or eating it. (RR4: 67-68). The most common dose is less than one gram,
most often one tenth of a gram, which is referred to as a dime-bag or dime-rock and
which usually costs ten to twenty dollars. (RR4: 68). He agreed that the 15.95 grams
of methamphetamine seized in this case could have made nearly 160 tenth of a gram
hits or doses. (RR4: 71). Ramsey testified that before methamphetamine is sold at
the street level, the seller frequently “steps” on it, diluting it with another substance
to make more money. By “stepping on” the 15.95 grams of methamphetamine in this
case, the re-seller could sell 320 hits or doses. (RR4: 73-75).
Ramsey testified that in his experience, the 15.95 gram amount in this case was
not for personal use, particularly in light of the presence of baggies and scales in the
vehicle, because there would be no need to weigh or repackage the drugs for personal
use. (RR4: 75-76). Ramsey testified that he was familiar with the Whiteside
residence on Highway 80 near Elmo; he had executed search warrants there and heard
it mentioned as a source for drugs. (RR4: 77-78). He testified that when traveling
to and from a known drug house, it is common practice to use women to carry the
drugs because it is more cumbersome for male law enforcement officers to search
them without making a formal arrest and taking them to jail to be searched by a
female officer. (RR4: 79-80). He explained that in his experience some women are
used as decoys while others are actually part of the drug gang of dealers. (RR4: 84-
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85).
The State rested after Ramsey’s testimony. (RR4: 87). Appellant declined to
testify, the defense moved for instructed verdict after re-urging appellant’s previous
objection to evidence obtained after the traffic stop. The court denied appellant’s
motions, after which the defense recalled Corporal Wheeler to testify that one of the
receipts in State’s exhibit 11, the bag in which the scales were found, was from
Sheppler’s in Mesquite, closer to where Shirley lived than to where appellant lived.
(RR4: 92-94).
Both sides rested and closed. (RR4: 94). Appellant requested that a lesser
included offense instruction of possession of less than one gram be included in the
jury charge, based upon the evidence that one of the six baggies of methamphetamine
came from the bundle of men’s clothing in the backseat of the pickup truck and that
the six baggies were not individually weighed. The court denied the request for a
lesser included offense. (RR4: 95-96).
ARGUMENT
STATE’S COUNTERPOINT ONE, restated
Appellant waived review of the issue he argues on appeal; his complaint at trial
does not comport with the issue on appeal. In any event, the trial court acted
within its discretion in denying appellant’s motion to suppress.
Appellant complains that the trial court erred in denying his motion to suppress
evidence which was obtained after – appellant claims – the officer performed a
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warrantless search of the vehicle outside the automobile exception and not otherwise
authorized by law. The State first contends that appellant failed to preserve any such
claim for review by this Court.
Appellant filed a pre-trial motion to suppress and obtained a hearing on the
motion. When the hearing commenced, however, defense counsel informed the court
that appellant would only contest “the basis for the stop. . . . We’re narrowing our
Motion to Suppress to the stop.” (RR2: 4). Having failed to assert in the trial court
any illegality in regard to the inventory search which Wheeler conducted after
impounding the uninsured vehicle, and having specifically limited his complaint to
the initial stop, appellant has waived review of that issue in this Court. Tex. R. App.
P. 33.1; Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (To
preserve error the point of error on appeal must comport with the objection made at
trial).
In the event this Court should find for some reason that appellant did not waive
review of this point of error, the State contends the trial court was within its
discretion in denying the motion to suppress. Corporal Wheeler testified that he
stopped the vehicle for a traffic offense in view, (RR2: 7-8; RR3: 138-39), and that
when he asked for identification and proof of insurance, he quickly determined from
the vehicle’s occupants that there was no current insurance for the vehicle. (RR3:
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149-50, 152-55). Wheeler testified that without insurance, neither occupant could
drive the vehicle, and he determined that it would need to be impounded. Wheeler
then testified that he performed an inventory of the vehicle’s contents for the dual
permissible purposes of protecting the occupants’ property and protecting the
department from liability for wrongful claims of stolen property. (RR3: 155-56).
Appellant did not direct the trial court to any flaws in the officer’s actions, nor
did he present any controverting evidence which might – if true – have demonstrated
that the inventory search was not lawful. Defense counsel did not direct any questions
to the officer at the motion to suppress hearing or at trial questioning the procedure
used to inventory the vehicle. The officer was justified in impounding the vehicle
because, pursuant to Tex. Transp. Code Sec. 601.051, it could not be driven without
insurance.
We review the trial court's ruling on a motion to suppress under a
bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559
(Tex. Crim. App.2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex.
Crim. App.2010). We afford almost total deference to the trial court's
rulings on (1) questions of historical fact that the record supports,
particularly when the trial court's fact findings are based on an
evaluation of credibility and demeanor, and (2) “application of law to
fact questions” that turn on an evaluation of credibility and demeanor.
Valtierra, 310 S.W.3d at 447; Amador v. State, 221 S.W.3d 666, 673
(Tex.Crim.App.2007). We apply a de novo review to the trial court's
application of the law to the facts. Hubert, 312 S.W.3d at 559; Amador,
221 S.W.3d at 673.
The trial court is the sole trier of fact and the judge of witness credibility
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and the weight to be given to witness testimony. Valtierra, 310 S.W.3d
at 447. When, as here, the trial court does not make explicit findings of
fact, the appellate court must view the evidence in the light most
favorable to the trial court's ruling and assume the trial court resolved
any issues of historical fact or credibility consistently with its ultimate
ruling. Hubert, 312 S.W.3d at 560. We must uphold the trial court's
ruling if it is “reasonably supported by the record and is correct on any
theory of law applicable to the case.” Valtierra, 310 S .W.3d at 447–48
(quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex .Crim.App.2006)).
Garcia v. State, No. 05-10-00521-CR, 2011 WL 5231426, at *2 (Tex. App. – Dallas
Nov. 3, 2011, no pet.)(not designated for publication).
Although appellant claims that the officer’s impoundment of the vehicle was
not specifically authorized by the Transportation Code, the State contends the
impoundment was lawful under applicable law. See Moskey v. State, 333 S.W.3d 696
(Tex. App. – Houston [1st Dist.] 2010, no pet.). Appellant admitted that he had no
current insurance on the truck, it was stopped on the side of the road miles from either
appellant’s or Shirley’s home, (RR3: 162), and the officer properly exercised his
discretion in impounding the uninsured vehicle. Although the officer could have
been more thorough in describing the impound and inventory policies of his
department if appellant had made any objection at trial, any vagueness in his
testimony should be evaluated in the context of the entire record, including the fact
that defense counsel had directed the court’s and the prosecutor’s attention only to his
complaint regarding the initial basis for the traffic stop. The trial court acted within
its discretion in denying the motion to suppress.
-15-
STATE’S COUNTERPOINT TWO, restated
The evidence was sufficient to support the jury’s verdict.
Appellant next complains that the evidence was insufficient to support the
jury’s verdict because it fails to adequately link appellant to the contraband.1 The
State contends that the evidence was sufficient to link appellant to the contraband and
that appellant has utilized an incorrect standard to argue the contrary.
A. Standard of Review
Evidence is insufficient to support a conviction if, considering all record
evidence in the light most favorable to the verdict, a factfinder could not
have rationally found that each essential element of the charged offense
was proven beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d
473, 478 (Tex. App. - Houston [1st Dist.] 2011, pet. ref'd) (citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979)). Evidence is insufficient under this standard in four
circumstances: (1) the record contains no evidence probative of an
element of the offense; (2) the record contains a mere “modicum” of
evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do
not constitute the criminal offense charged. Gonzalez, 337 S.W.3d at
479. If an appellate court concludes that the evidence is insufficient
under this standard, it must reverse the judgment and enter an order of
acquittal. Gonzalez, 337 S.W.3d at 479 (citing Tibbs v. Florida, 457
U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)).We
determine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence viewed in the
light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16-
17 (Tex. Crim. App. 2007)). When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S.Ct. at 2793; Clayton, 235 S.W.3d at 778. We likewise defer to the
1
Appellant does not contest the evidence adduced to prove intent to deliver.
-16-
factfinder's evaluation of the credibility of the evidence and the weight
to give the evidence. Gonzalez, 337 S.W.3d at 479 (citing Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The reviewing
court must also “consider all evidence which the jury was permitted,
whether rightly or wrongly, to consider.” Thomas v. State, 753 S.W.2d
688, 695 (Tex.Crim.App.1988) (en banc) (emphasis omitted). If a
portion of this evidence was erroneously admitted, the accused may
complain on appeal of such error, and a new trial should be ordered if
the error is reversible. Id. [footnotes omitted]
Burrell v. State, 445 S.W.3d 761, 764 (Tex. App. – Houston [1st Dist.] 2014, pet.
ref’d).
In regard to prosecutions for possession of controlled substances, when a
defendant is not in exclusive possession of the contraband,
"the State must prove that: (1) the accused exercised control,
management, or care over the substance; and (2) the accused knew the
matter possessed was contraband."Regardless of whether the evidence
is direct or circumstantial, it must establish that the defendant's
connection with the drug was more than fortuitous. This is the so-called
"affirmative links" rule which protects the innocent bystander — a
relative, friend, or even stranger to the actual possessor — from
conviction merely because of his fortuitous proximity to someone else's
drugs. 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, 161-62 (Tex. Crim. App. 2006).
Appellant does not argue that the combined force of the links established by
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the State’s evidence were insufficient; instead, appellant takes each link in isolation
and dismisses it, concluding that this Court should find the evidence insufficient
because each link in isolation is insufficient to link him to the contraband. The Court
of Criminal Appeals has explained that this type of analysis is incorrect:
The court of appeals, however, analyzed each one of these facts or links
in isolation. Apparently relying on alternative inferences from or
explanations for almost every piece of evidence, it disregarded that
evidence and concluded that nothing but appellant's presence and
proximity linked him to the drugs. It also recited further possible
“affirmative links” that might have connected appellant to the drugs
(such as intoxication, flight, and furtive gestures) but did not exist in this
case. The jury presumably went through exactly the same weighing of
evidence, credibility assessments, and alternative-explanation exercises
and came to the opposite conclusion, i.e., appellant was connected to the
drugs. Under federal and Texas law, juries trump both trial and appellate
judges on weight-of-evidence determinations.
Evans v. State, 202 S.W.3d 158, 164 (Tex. Crim. App. 2006).
The State contends that when the various circumstances proven in this case are
examined under the appropriate standard, the combined forces of those circumstances
is sufficient to support the jury’s verdict. In the instant case, as in Burrell, appellant
was in the truck with his female co-defendant Shirley leaving a known drug house
when Corporal Wheeler first saw them. Wheeler and Ramsey both testified that they
had made numerous drug arrests of offenders who acquired drugs at that location.
The officer testified that appellant admitted that he had used methamphetamine that
morning, and a used syringe was found in the floorboard of the pickup. Bags and
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scales were found under the seat within reach of both appellant and Shirley. One
baggie of methamphetamine was found in male clothing in a bag which appellant
claimed belonged to him in the back seat. And five additional baggies of meth were
found on Shirley’s person.
In addition to the eyewitness testimony regarding these circumstances, the State
also presented evidence that the pickup truck was not owned by co-defendant Shirley
prior to the offense, but was instead owned by appellant or his parents.2 Appellant
relies on the forfeiture pleadings filed after this offense to demonstrate that Shirley
was a co-owner of the vehicle; it appears, however, that Shirley was simply named
as a putative owner in the forfeiture pleadings because she was driving the vehicle at
the time of seizure. See Tex. Code Crim. Proc. article 59.04(j)(“a person who was in
possession of the property at the time it was seized shall be made a party to the
[forfeiture] proceeding.”). Nothing in State’s exhibit 3 or otherwise shows that the
vehicle belonged to anyone except appellant and his mother on the date of the
offense.
Finally, the State presented expert testimony from Corporal Wheeler and
Sergeant Ramsey that the location where the truck was first seen was a known drug
2
Although the witness and the State assumed that the “James Bankston” named on title
documents with Bertha Bankston was appellant, in fact State’s exhibit 3 includes an affidavit of
heirship for the vehicle which states that “James C. Bankston” died in 2008; appellant’s name is
James Loyd Bankston. The officer testified that Bertha was appellant’s mother.
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source location, that most of the Kaufman County Sheriff’s patrol officers were male
and could not fully search female suspects, and that – consequently – it was a
common practice in the area for persons transporting drugs to use a woman decoy or
co-conspirator to carry the drugs. The jury was entitled to consider this testimony in
conjunction with the physical circumstances of the offense and the title information
and to determine that the combined force of these circumstances was sufficient to
ensure that appellant was not merely an innocent bystander. This point of error is
meritless.
STATE’S COUNTERPOINT THREE, restated
The trial court did not abuse its discretion in refusing appellant’s
requested lesser-included-offense instruction.
Appellant requested a lesser included offense instruction which would have
permitted the jury to find him guilty of possession of methamphetamine in an amount
less than one gram, but the court denied that instruction. He did not request a lesser
included charge of possession (or possession with intent to deliver) methamphetamine
in an amount of one gram or more but less than four grams. The State contends that
the evidence did not support submission of the requested lesser-included possession
charge.
The evidence supports an instruction on a lesser-included offense
if it permits a rational jury to find the defendant guilty only of the
lesser-included offense. "[T]here must be some evidence directly
germane to the lesser-included offense for the finder of fact to consider
before an instruction on a lesser-included offense is warranted." We
consider all of the evidence admitted at trial, not just the evidence
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presented by the defendant. The evidence must establish that the
lesser-included offense is a valid, rational alternative to the charged
offense. "Anything more than a scintilla of evidence is sufficient to
entitle a defendant to a lesser charge."• However, we may not consider
"[t]he credibility of the evidence and whether it conflicts with other
evidence or is controverted." [footnotes omitted]
Goad v. State, 354 S.W.3d 443, 446-47 (Tex. Crim. App. 2011).
The State contends that although possession of methamphetamine in an amount
less than one gram was an offense included within the indicted offense of possession,
with intent to deliver, of methamphetamine in an amount of 4 grams or more but less
than 200 grams, no evidence was admitted which would “establish that the
lesser-included offense is a valid, rational alternative to the charged offense.”
Appellant did not testify, nor did he or the State offer any evidence that he possessed
the single baggie of drugs but not the remainder of the drugs and the delivery-related
paraphernalia in his pickup truck. In addition, Sergeant Ramsey explained to the jury
that a single Sweet-n-Low packet is approximately one gram in weight, the six
baggies of methamphetamine seized were admitted in evidence, and the jury could
readily determine by examining the evidence that none of the six packets was less
than one gram in weight. (RR4: 68). Although the physical evidence before the jury
might arguably have supported an instruction on the lesser-included offense of
possession of one gram or more but less than 4 grams of methamphetamine, appellant
did not request that instruction. The trial court did not abuse its discretion in refusing
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the lesser-included instruction which actually was requested.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, there being legal and competent
evidence sufficient to justify the verdict, the State requests that this Honorable Court
will affirm the the judgment of the Trial Court below.
Respectfully submitted, ___/s/ Sue Korioth ______
SUE KORIOTH,
ERLEIGH NORVILLE WILEY State Bar No. 11681975
CRIMINAL DISTRICT ATTORNEY ASST. CRIMINAL D.A.
KAUFMAN COUNTY, TEXAS 100 W. MULBERRY STREET
KAUFMAN, TEXAS 75142
(972) 932-4331 ext. 1264
ATTORNEYS FOR THE STATE FAX (972) 932-0357
suekorioth@aol.com
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on the 13th day of March 2015, a copy
of the foregoing will be served on Lara Bracamonte, attorney for appellant, by e-
service if available, or by placing in U.S. Mail and by email to her email address.
___/s/ Sue Korioth ______
RULE 9.4 CERTIFICATE OF COMPLIANCE
Using the Wordperfect 5 word count utility, I have determined that this
document contains 5,271 words, not including the "caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix." TRAP 9.4(I).
/s/ Sue Korioth
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