ACCEPTED
01-15-00134-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/19/2015 8:30:28 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00134-CR
______________________________________________
FILED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
COURT OF APPEALS FOR THE 11/19/2015 8:30:28 PM
FIRST DISTRICT OF TEXAS CHRISTOPHER A. PRINE
AT HOUSTON Clerk
______________________________________________
JENNIFER LEANN WATSON
VS.
THE STATE OF TEXAS
______________________________________________
Appealed from the 338th District Court
of Harris County, Texas
Cause Number 1363069
______________________________________________
APPELLANT’S BRIEF
______________________________________________
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
ORAL ARGUMENT WAIVED
IDENTIFICATION OF THE PARTIES
Pursuant to Tex. R. App. P. 38.1(a), a complete list of the names of
all interested parties is provided below:
1. JENNIFER LEANN WATSON – Appellant
14703 Red Canary Court
Cypress, Texas 77433-6632
2. CHERYL BROWN – Trial Counsel for Appellant
1314 Texas Avenue, Suite 1201
Houston, Texas 77002-3525
3. RANDALL J. AYERS – Appellate Counsel for Appellant
P.O. Box 1569
Houston, Texas 77251-1569
4. BRADFORD CROCKER – Trial Counsel for State
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1997
5. LAUREN BARD – Trial Counsel for State
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1997
6. ALAN CURRY – Chief Appellate Counsel for State
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002-1997
7. HONORABLE BROCK THOMAS – Trial Judge
338th District Court
1201 Franklin, 15th Floor
Houston, Texas 77002-1913
1
TABLE OF CONTENTS
Page
IDENTIFICATION OF THE PARTIES ………………………..…. 1
INDEX OF AUTHORITIES ……………………………………..… 3
STATEMENT REGARDING ORAL ARGUMENT ……………… 4
STATEMENT OF THE CASE …………………………………..… 4
ISSUES PRESENTED FOR REVIEW ……………………………. 5
STATEMENT OF FACTS ………………………………………… 5
SUMMARY OF THE ARGUMENT ……………………………… 9
POINT OF ERROR ONE ………………………………………….. 9
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT’S COMMUNITY SUPERVISION FOR COMMITTING
THE OFFENSE OF POSSESSION OF A CONTROLLED
SUBSTANCE WHEN THE EVIDENCE DID NOT PROVE ALL OF
THE NECESSARY ELEMENTS OF THAT OFFENSE.
CONCLUSION AND PRAYER …..……………………………… 14
CERTIFICATE OF SERVICE …………………………………..… 15
CERTIFICATE OF COMPLIANCE ………………………………. 15
2
INDEX OF AUTHORITIES
Page
Cases
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) …………….. 10
Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) ………………… 10
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) …………… 11, 12
Hargesheimer v. State, 182 S.W.3d 906 (Tex. Crim. App. 2006) ……… 10
Herndon v. State, 787 S.W.2d 408 (Tex. Crim. App. 1990) …………..… 12
Johnson v. State, 943 S.W.2d 83
(Tex. App. – Houston [1st Dist.] 1997) ……………………………. 10
Jones v. State, 787 S.W.2d 96
(Tex. App. – Houston [1st Dist.] 1990) ……………………………. 10
Nheem v. State, 129 S.W.3d 696
(Tex. App. – Houston [1st Dist.] 2004) ……………………………. 11
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ……..... 11, 12
Shaw v. State, 622 S.W.2d 862 (Tex. Crim. App. 1981) …….………….. 10
Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) …………..…… 10
Statutes and Rules
Tex. Health & Safety Code §481.002(38) ……………………………... 11
Tex. Health & Safety Code §481.115 ………………………………….. 11
Tex. Pen. Code §1.07(39) ………………………………………….……. 11
Tex. R. App. Proc. 38.1(a) …...…………………………………………. 1
Tex. R. App. Proc. 39.7 ………………………………………………… 4
3
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39.7, Appellant waives oral argument.
STATEMENT OF THE CASE
Appellant was indicted for possession with intent to deliver a
controlled substance. (CR 16)1. Appellant pled guilty pursuant to an agreed
plea bargain with the State for 3 years deferred adjudication community
supervision and was placed in the Felony Mental Health Court specialized
caseload. (CR 29-35, 117). The State filed a motion to adjudicate guilt
alleging Appellant had violated her conditions of community supervision.
(CR 50-51). Appellant pled not true to allegations in the motion to
adjudicate. (CR 62-63; RR-V2 12-14)2. After a hearing, the trial court found
it true that Appellant had violated her community supervision as alleged in
the motion, adjudicated her guilty, and sentenced her to 6 years in prison.
(CR 62-63, 120; RR-V2 122-123; RR-V3 19-20). Appellant filed timely
written notice of appeal. (CR 68-69, 120).
1
CR = Clerk’s Record, Volume I of I; RR = Reporter’s Record, Volumes 1 through 4.
2
Appellant pled not true on the record at the beginning of the adjudication hearing, as is
clearly shown in the Reporter’s Record (RR-V2 12-14); however the Clerk’s Judgment
Adjudicating Guilt incorrectly states that Appellant pled true (CR 62-63).
4
ISSUES PRESENTED FOR REVIEW
Did the trial court abuse its discretion when it found it true that
Appellant had violated her community supervision by committing the
offense of possession of a controlled substance where the evidence was
insufficient to prove that Appellant intentionally and knowingly possessed
the controlled substance in question?
STATEMENT OF FACTS
At the adjudication hearing, Harris County Deputy Sheriff Jimmie
Norris testified that in an attempt to locate a suspect wanted on an open
felony arrest warrant from another county, he and several other deputies
went to an address in Harris County, Texas, where they had received
information that the suspect might be found. (RR-V2 39-42). Norris testified
that when they arrived at the address, they observed the front door of the
residence standing open, so they announced “Sheriff’s Office” and entered
the residence. (RR-V2 42-45). Norris testified that they heard voices coming
from a bedroom in the house, and when they went to investigate, they
observed Appellant and an adult male asleep on a bed, and two other adult
females standing next to the bed. (RR-V2 45-48). Norris testified that he
5
observed an open purse on the bed next to where Appellant had been
sleeping, and that inside the purse he could see a smaller “Disney makeup
bag” that had syringes protruding from it, as well as plastic baggies
containing a grayish white powder that later tested positive as
methamphetamine weighing 1.963 grams. (RR-V2 49-52, 70-72). Norris
testified that Appellant’s identification was subsequently located in a wallet
found inside the same purse. (RR-V2 52-53). Norris testified that
Appellant’s four children were in another part of the residence, and that
when everyone in the residence denied any knowledge or ownership of the
methamphetamine, Appellant was arrested and charged with possession of
the methamphetamine. (RR-V2 48-55).
Chris Hernandez, Appellant’s boyfriend, testified that he was asleep
alongside of her in the bed when the deputies came into the residence. (RR-
V2 75-76). Hernandez testified that the other two females in the bedroom
when the deputies came in were his cousin Jessica Matou and an
acquaintance named Desiree Haas, and the he knew Desiree Haas to be a
drug addict who abused, among other things, methamphetamine. (RR-V2
76-77). Hernandez testified that he did not believe that the
methamphetamine was Appellant’s, and that when asked by the deputies
6
both he and Appellant denied any knowledge of the methamphetamine, as
did Desiree Hass and his cousin Jessica Matou. (RR-V2 79-82).
Mileah Alvarez, Appellant’s 14-year old daughter, testified that she
was also present when the deputies came into the residence, and that it was
she who had let Desiree Haas, whom she knew as a former baby-sitter and
acquaintance of her mother, into the residence earlier that day. (RR-V2 86-
88). Alvarez testified that when Hass arrived, she had noticed that Haas had
in her possession a “little Mickey Mouse” pencil bag, which Alvarez
recognized as something that she believed Hass had stolen from her
previously. (RR-V2 87-88). Alvarez testified that Haas went into the
bedroom where her mother, Appellant, was asleep. (RR-V2 88-90). Alvarez
testified that she then went to sleep in her room until the deputies awakened
her sometime later. (RR-V2 89). Alvarez testified that when the deputies
asked everyone about the methamphetamine in the Mickey Mouse bag, Haas
claimed it belonged to Chris Hernandez, and repeatedly stated that she could
not “take the charge because if I take the charge, my brother will kill me,”
and that Haas was “real jumpy and real twitchy and real frantic.” (RR-V2
89-92).
Appellant testified that she was asleep in bed when the deputies came
into her residence, and that she did not know that Desiree Haas and Jessica
7
Matou were even in her residence as they had arrived after she had gone to
sleep. (RR-V2 93-101). Appellant testified that she had no knowledge of the
methamphetamine found inside her purse. (RR-V2 99-100, 106-107).
Appellant testified that she knew Desiree Haas had a history of drug use,
including methamphetamine, and that Haas appeared to Appellant to be “on
drugs” at the time. (RR-V2 101-105). Appellant testified that when asked by
the deputies Haas denied that the methamphetamine was hers and said it
belonged to Chris Hernandez, and that when Appellant’s daughter asked
Haas to tell the deputies whose methamphetamine it really was, Haas stated,
“Because if I do, my brother will kill me.” (RR-V2 108-109).
Sheena Poole testified that she was Appellant’s probation officer in
the Felony Mental Health Court program. (RR-V2 17-19). Poole testified
that Appellant failed to report as scheduled on four occasions, and failed to
submit a urine sample on three occasions. (RR-V2 22-25). Poole further
testified that Appellant was also in arrears on paying various fees and costs
totaling $154.50. (RR-V2 25-26). Poole testified that for these reasons,
Appellant had failed to successfully participate in the Felony Mental Health
Court program. (RR-V2 26).
8
SUMMARY OF THE ARGUMENT
The trial court abused its discretion when it found it true that
Appellant had violated her community supervision by committing the
offense of possession of a controlled substance where the evidence did not
prove that Appellant intentionally and knowingly possessed the controlled
substance in question.
POINT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT’S COMMUNITY SUPERVISION FOR COMMITTING
THE OFFENSE OF POSSESSION OF A CONTROLLED
SUBSTANCE WHEN THE EVIDENCE DID NOT PROVE ALL OF
THE NECESSARY ELEMENTS OF THAT OFFENSE.
RELEVANT FACTS, AUTHORITIES & ARGUMENT
In Appellant’s case, the State’s motion to adjudicate guilt alleged that
Appellant violated the terms and conditions of her community supervision
by committing the offense of possession of a controlled substance, more
specifically by:
“Committing an offense against the State of Texas, to-wit; on or about
July 15, 2104, in Harris County, Texas, JENNIFER LEANN WATSON,
hereafter styled the Defendant, did then and there unlawfully intentionally
and knowingly possess a controlled substance, namely
METHAMPHETAMINE, weighing more than 1 gram and less than 4 grams
by aggregate weight, including any adulterants and dilutants.” (CR 50).
9
A defendant on deferred adjudication supervision has the right to
appeal a trial court’s determination to proceed with an adjudication of guilt,
as well as all proceedings following an adjudication of guilt, in the same
manner as a revocation of regular community supervision or probation. Tex.
Code Crim. Proc. Art. 42.12 § 5(b); Hargesheimer v. State, 182 S.W.3d
906, 910-913 (Tex. Crim. App. 2006). The decision on whether or not to
revoke community supervision rests within the sound discretion of the trial
court, and will not be reversed on appeal absent abuse of that discretion.
Wester v. State 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). The burden of
proof in a revocation proceeding is on the State, and is measured by a
preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993); Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App.
1981). The law is clear that the State bears the burden of proving every
element of an alleged violation of community supervision relied upon for
revocation. Shaw, 622 S.W.2d at 863; Johnson v. State, 943 S.W.2d 83, 85
(Tex. App – Houston [1st Dist.] 1997), citing Jones v. State, 787 S.W.2d 96,
97 (Tex. App. – Houston [1st Dist.] 1990). When the State fails to meet its
burden of proving the alleged violation of community supervision, the trial
court abuses its discretion in revoking that community supervision. Cardona
v. State, 665 S.W.2d 492, 493-494 (Tex. Crim. App. 1984).
10
Thus, in Appellant’s case, the State was required to prove that
Appellant committed the offense of possession of a controlled substance as
alleged in the motion to adjudicate. One of the required elements to prove
possession of a controlled substance is proof that the accused intentionally or
knowingly possessed the controlled substance. Tex. Health & Safety Code
§481.115. “Possession” means actual care, custody, control, or management.
Tex. Health & Safety Code §481.002(38); Tex. Penal Code §1.07(39). In
order to prove unlawful possession of a controlled substance, the State must
prove that: (1) the accused exercised actual care, custody, control, or
management over the substance; and (2) that the accused affirmatively knew
the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402,
405-406 (Tex. Crim. App. 2005). Further, when the accused is not in
exclusive possession of the place where a controlled substance is found, the
State must prove additional independent facts and circumstances that
affirmatively link the accused to the knowing possession of the contraband in
such a way that it can be concluded that the defendant had actual knowledge
of the contraband’s existence as well as knowingly exercising actual control
over it. Evans v. State, 202 S.W.3d 158, 161-162 (Tex. Crim. App. 2006);
Poindexter, 153 S.W.3d at 406; Nhem v. State, 129 S.W.3d 696, 699-700
(Tex. App. – Houston [1st Dist.] 2004). Mere presence of the accused at the
11
location of the contraband, or even knowledge that someone else is in
possession of the contraband at the location, does not make the accused a
party to the possession. Herndon v. State, 787 S.W.2d 408, 410 (Tex. Crim.
App. 1990). In addition to mere presence, the State must establish sufficient
“affirmative links” between the accused and the contraband which are more
than fortuitous. Evans, 202 S.W.3d at 161. These “affirmative links” are
necessary to protect the otherwise innocent bystander – a relative, friend,
spouse, or roommate for example – from conviction based solely upon the
her fortuitous proximity to someone else’s illegal activities. Evans, 202
S.W.3d at 161-162; Poindexter, 153 S.W.3d at 406.
In Appellant’s case, the record is clear that Appellant was not in
exclusive control of the residence in which the methamphetamine was
found. There were three other adults present, and it is undisputed that
Appellant was asleep when the deputies entered the residence and found the
purse from which the methamphetamine was recovered. (RR-V2 39-62). It is
likewise undisputed that two of the other adults present, Desiree Haas and
Jessica Matou, were both awake and were seen standing next to the bed on
which the purse was found, and that Deputy Norris saw them “fiddling with
stuff” … “digging in purses and bags and stuff’ … “just plundering” in the
vicinity of the bed where the purse was located. (RR-V2 46-49, 56-57).
12
Deputy Norris also noticed that both Desiree Haas and Jessica Matou had
visible needle marks on their arms indicative of drug use, and that Appellant
did not have any such marks. (RR-V2 60-62). Further, there is testimony in
the record that Desiree Haas was seen in possession of the “Mickey Mouse”
bag wherein the methamphetamine was found prior to going into the
bedroom where Appellant was asleep, and that Haas appeared to be under
the influence of drugs, and made statements somewhat indicative of guilt.
(RR-V2 86-92, 103-104, 108-109). It is clear then from the facts and
circumstances that there is little beyond Appellant’s mere presence to link
her to the methamphetamine, and in fact more than ample evidence to
affirmatively link Desiree Haas to the methamphetamine.
Since the evidence before the trial court was insufficient to prove the
independent facts and circumstances necessary to affirmatively link
Appellant to the knowing possession of the methamphetamine in such a way
that it could be concluded that Appellant had both actual knowledge of the
methamphetamine’s existence as well as that Appellant knowingly exercised
actual control over it, and in fact ample evidence to the contrary, the State
failed to prove a required element of the offense of possession of a
controlled substance, and thus it was an abuse of discretion for the trial court
13
to find that Appellant had violated her community supervision by
committing the offense of possession of a controlled substance.
CONCLUSION AND PRAYER
For the reasons set out in the foregoing point of error, Appellant prays
that this Honorable Court of Appeals will reverse Appellant’s conviction and
sentence and remand this case back to the trial court for a new trial or such
other relief as this Honorable Court deems appropriate.
Respectfully submitted,
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
14
CERTIFICATE OF SERVICE
I certify that I served the foregoing Appellant’s Brief on the District
Attorney of Harris County, Texas, by sending a copy to Mr. Alan Curry,
Chief of the Appellate Division, Harris County District Attorney’s Office,
via electronic service to curry_alan@dao.hctx.net on November 19, 2015.
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure I
certify that this document contains a total of 2,799 words.
/s/ Randall J. Ayers
RANDALL J. AYERS
Attorney for Appellant
State Bar No. 01465950
P.O. Box 1569
Houston, Texas 77251-1569
rjayerslaw@comcast.net (email)
(281) 493-6333 (telephone)
(281) 493-9609 (fax)
15