James Loyd Bankston v. State

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-

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 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).

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 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:

-13-
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.

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 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.
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 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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